SAN DIEGO (Legal Newsline) - A federal judge has refused to temporarily halt California's ban on flavored tobacco while a legal challenge sorts itself out.'
Judge Cathy Ann Bencivengo, of the Southern District of California, on Nov. 15 rejected R.J. Reynolds Tobacco Company and others' motion for a preliminary injunction against Senate Bill 793.
The plaintiffs had "acquiesced" that their express preemption claim is prohibited by a U.S. Court of Appeals for the Ninth Circuit ruling in a similar challenge to a Los Angeles law. R.J. Reynolds is appealing that decision to the U.S. Supreme Court.
So Bencivengo also rejected an injunction against the ban pending the outcome of the appeal in that case.
"Plaintiffs have nevertheless preserved their claim and Defendants have preserved their defenses and arguments for further appellate review," she wrote.
R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company, American Snuff Company LLC and others filed their against Robert Bonta, in his official capacity as Attorney General of California, and Summer Stephan, in her official capacity as District Attorney for the County of San Diego, alleging violation of the Dormant Commerce Clause and other claims.
R.J. Reynolds and the other plaintiffs allege in their complaint that California's SB793, which was recently upheld on the state's November 8 voter ballot as a veto referendum, allowing the ban of flavored tobacco products, is unlawful due to dictating "how out-of-state manufacturers must manufacture their products."
Specifically, the plaintiffs allege by banning "characterizing flavors" of tobacco products, the state is attempting to dictate how out-of-state manufacturers produce their products and exceeding its authority by directly regulating interstate commerce. They claim that under the Federal Tobacco Control Act, state and localities' authority to regulate the sale of tobacco products does not allow them to prohibit the sale of those products.
The plaintiffs also claim California's SB793, is preempted by federal law and attempts to regulate manufacturers outside the state's borders. The plaintiffs allege that they have "taken active steps" to prevent youth access to tobacco products and that they continue to work with the FDA to keep tobacco products away from youth, including the "We Card" and "mystery shopper" programs.
The plaintiffs seek monetary relief, enjoinment of SB793 and all other just relief. They are represented by Noel Francisco, Christian Vergonis, Ryan Watson and Andrew Bentz of Jones Day in Washington, D.C.