On November 8, 2022, California voters approved[1] the Referendum on 2020 Law That Would Prohibit the Retail Sale of Certain Flavored Tobacco Products (Proposition 31). The referendum, submitted in accordance with the provisions of Section 9 of Article II of the California Constitution, asked California citizens to vote on whether to uphold a 2020 law (Senate Bill No. 793)[2] that banned the sale of most non-tobacco flavored tobacco products at tobacco retailers and in vending machines.

Senate Bill No. 793

In 2020, the California legislature passed, and Governor Gavin Newsom signed Senate Bill 793 (S.B. 793), which added sections to the State’s Health and Safety Code that would prohibit tobacco retailers—specifically brick-and-mortar stores and vending machine operators—from “selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer (emphasis added).” A tobacco retailer is a person who engages in this state in the sale of tobacco products directly to the public from a retail location.

The statute defined flavored tobacco product as meaning “any tobacco product that contains a constituent that imparts a characterizing flavor” and tobacco product flavor enhancer as meaning a “product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.”[3] Both terms encompass a broad swath of products, including, but not limited to, e-cigarettes, vape pods, and chewing tobacco[4].

According to the statute, flavored tobacco products and tobacco product flavor enhancers cannot have a “characterizing flavor.” A “characterizing flavor” is defined as a “distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product.” The definition continues by listing examples of characterizing flavors, including “tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.”[5]

This law does not apply to hookah lounges that sell non-tobacco flavored hookah (i.e., shisha or waterpipe) tobacco to be used inside the venue[6]. It also excludes certain cigars and loose-leaf tobacco from the ban[7]. Lastly, while this measure does not address online sales of non-tobacco flavored products, legally selling tobacco products online to California is very difficult, as a practical matter, and requires compliance with the PACT Act and shipping restrictions by common carriers, as well as the California STAKE Act.

Similar Flavor Bans

California is not the first governmental entity to adopt a ban on non-tobacco flavored tobacco products. Dozens of cities, counties, and states like Massachusetts have passed bans on non-tobacco flavored tobacco products. Cigarettes with specific characterizing flavors—other than menthol and tobacco—were banned in 2009 when the Family Smoking Prevention and Tobacco Control Act (TCA) was enacted (see section 907). Moreover, the U.S. Food and Drug Administration (FDA), in April 2022, proposed a ban on menthol-flavored cigarettes and all non-tobacco flavored cigars[8].

Challenge to the Los Angeles County Ban

In September 2019, Los Angeles County enacted its own ban on the sale of all non-tobacco flavored tobacco products, including cigarettes, little cigars, smokeless tobacco, e-cigarettes, hookah, synthetic nicotine products, flavored liquids and wraps designed to add flavors to tobacco products[9]. Industry quickly brought a challenge to this ban. Over the last two years, tobacco product manufacturers R.J. Reynolds, the American Snuff Company, and the Santa Fe Natural Tobacco Company have challenged the ban in federal court.

The manufacturers broadly argue that Congress granted FDA sole authority to regulate “tobacco product standards” when it passed the TCA. And while the TCA does preserve some authority to states and other political subdivisions under section 916, these bans on non-tobacco flavored tobacco products equate to unlawful product standards.[10] Therefore, state and local bans on flavored tobacco products are preempted under federal law. Recently, the United States Court of Appeals for the Ninth Circuit, in a 2-1 decision, affirmed a district court’s decision that federal law does not preempt Los Angeles County’s ban on all flavored tobacco products[11]. Following this, R.J. Reynolds and its co-plaintiffs have filed a petition for a writ of certiorari with the United States Supreme Court to overturn the Ninth Circuit’s decision[12].

Keller and Heckman Files Supreme Court Amicus Brief in Support of R.J Reynolds Cert Petition on Behalf of E-Cigarette Businesses and Trade Associations selling Non-Tobacco Flavored Products to Adults

On November 14, Keller and Heckman, on behalf of several e-cigarette businesses and trade associations, filed an amicus brief with the Supreme Court expressing support for the petitioners’ cert request[13]. The individual business amici are Bidi Vapor; Fresh Farms E-Liquid; SV3 d/b/a Mi-Pod Distributors; Charlie’s Chalkdust; Flavor West Manufacturing; American Vape Company; NicQuid; and Flavors15 d/b/a Flavors United. The trade association amici are American Vapor Manufacturers (“AVM”) and the Ohio Vapor Trade Association (“OHVTA”).

The amicus brief argues that numerous studies have shown that e-cigarettes pose substantially less health risk than combustible cigarettes, while also promoting harm reduction by providing adult smokers a known and effective quit aid to combustible cigarettes. Particularly important for adult smokers are non-tobacco flavored e-cigarettes, the primary target of many state and local bans. The brief also elaborates on the scope of authority that states and political subdivisions retained under section 916 of the TCA and argues that such state and local bans are explicitly preempted under the TCA because such wide-ranging bans, in effect, establish requirements related to “premarket review,” something states and localities are expressly prohibited from doing[14]. In general, the brief argues that “e-cigarette bans, such as the non-tobacco flavor ban adopted by the County of Los Angeles, may be counterproductive and that a more balanced approach is needed to effectively address tobacco use and promote cessation in the U.S.”[15]

The Supreme Court is now considering the Reynolds petition and is likely to render a decision on whether it will accept and hear the case by early 2023.

R.J. Reynold’s Challenge to California’s Proposition 31

Separate from the legal challenge to the Los Angeles County ban on flavored tobacco products, R.J. Reynolds and others promptly filed in the U.S. District Court for the Southern District of California a lawsuit seeking an injunction to stop Proposition 31 from taking effect[16]. Absent an injunction, the ban will take effect five days after the Secretary of State certifies the results, which will occur by December 16, 2022. A group of plaintiffs that includes Reynolds promptly filed a preemption challenge to California’s new statewide ban on flavored tobacco products. The California case includes the same preemption issues as the Los Angeles County case. The Proposition 31 challenge moved quickly through the district court and the emergency request is now docketed in the Ninth Circuit.

Similar to arguments presented in the Ninth Circuit challenging the Los Angeles County ban, the plaintiffs argue that the California law is preempted under federal law because the TCA prohibits state and local governments from enacting “tobacco product standards.” The plaintiffs also maintain that the state-wide ban is prohibited under the Constitution’s Dormant Commerce Clause because it specifically regulates manufacturing activities outside of California.