R.J. Reynolds and other tobacco companies filed a request Tuesday asking the U.S. Supreme Court to impose an emergency order to stop California from enforcing a ban on flavored tobacco products that was overwhelmingly approved by voters earlier this month.
The ban was first passed by the state legislature two years ago but it never took effect after tobacco companies gathered enough signatures to put it on the ballot. But after nearly two-thirds of voters approved of banning the sale of everything from cotton-candy vaping juice to methanol cigarettes, it is set to go into effect by Dec. 21.
Supporters of the ban say the law was necessary to put a stop to a staggering rise in teen smoking.
R.J. Reynolds filed a federal lawsuit challenging it a day after the Nov. 8 vote, but the 9th U.S. Circuit Court of Appeals on Tuesday denied the company’s emergency motion to block the law pending appeal.
The tobacco giants argue that the authority to ban flavored products rests in federal law. The Family Smoking Prevention and Tobacco Control Act gives the Food and Drug Administration the authority to regulate tobacco. The companies are being represented by Noel Francisco, who served as the Trump administration’s top Supreme Court lawyer.
California will be the second state in the nation, after Massachusetts, to enact a ban prohibiting the sale of all flavored tobacco products. A number of California cities, including Los Angeles and San Diego, already enacted their own bans, and several states have outlawed flavored vaping products. So far no legal challenges to those bans have prevailed.
But tobacco companies have been pushing especially hard to keep from being shut out of a large portion of California’s vast market.
In the filing, the companies said they would suffer “irreparable harm” from not being able to sell the products in one of the nation’s largest markets. R.J. Reynolds, the maker of Newport menthol cigarettes, said menthol cigarettes make up one-third of the California cigarette market. Modoral Brands Inc. only makes flavored tobacco products and stands to lose millions, according to the filing.
The companies argued that small retailers will face laying off employees and possibly closing. Among those filing for the order is the Neighborhood Market Association, a group of San Diego retailers that include vape shops.
It’s already illegal for retailers to sell tobacco to anyone under 21. But advocates of the ban said flavored cigarettes and vaping cartridges were still too easy for teens to obtain. The ban doesn’t make it a crime to possess such products but retailers who sell them could be fined up to $250.
In addition to menthol and other flavored cigarettes, the ban also prohibits the sale of flavored tobacco for vape pens, tank-based systems and chewing tobacco, with exceptions made for hookahs, some cigars and loose-leaf tobacco.