On November 29, R.J. Reynolds and other tobacco and vapor companies filed an emergency application for writ of injunction with the United States Supreme Court, requesting that enforcement of California’s nicotine flavor ban be halted.
The move will be framed as Big Tobacco’s attempt to thwart the will of California voters, who on November 8 overwhelmingly passed a ballot measure—Proposition 31—to ban the sale of almost all flavored nicotine products (hookah and some premium cigars are exempt). The legislation on the ballot, SB 793, had been delayed by constant pushback from tobacco harm reduction (THR) advocates and the industry. It was passed by California lawmakers in 2020, but legal challenges bought its opponents a two-year window.
Many adults who use vapes to stop smoking cigarettes have found non-tobacco flavors helpful or even essential, something often eclipsed by the national outcry over youth vaping rates. They, and THR advocates, will hope that the new legal bid succeeds—although they may not welcome the association of their cause with Big Tobacco.
Such discomfort won’t be improved by the new filing’s emphasis on financial harms to the companies, rather than explicitly on health harms to people who rely on flavored vapes to stay off cigarettes—even if access through legal sales is vital to that population.
The escalation to the Supreme Court is unprecedented.
In the filing, R.J. Reynolds argues that the ban will cause the manufacturer “irreparable harm,” leading to “substantial financial losses” and a hit to “customer goodwill” and its reputation. Among other products, Reynolds sells Newports, a leading brand of menthol cigarettes that would be prohibited for sale under California’s new law. Banning menthol cigarettes, which are disproportionately smoked in Black communities, has also been proposed at a federal level by the Food and Drug Administration (FDA)—an idea condemned by many racial justice advocates for its threat of increased criminalization.
Another applicant, Modoral Brands, which produces Velo nicotine pouches, argues in the new filing that it would “be entirely shut out from California” since it only produces flavored nicotine products. And Vapin’ the 619, a San Diego-based retailer that just sells vaping products and e-liquids, would “likely have to close up shop completely and lay off its employees.”
Reynolds and other companies supplied most of the funding for the campaign against Prop. 31. Meanwhile Michael Bloomberg—a longtime foe of THR—pretty much exclusively bankrolled the committee in support of Prop. 31, with still larger sums.
Prop. 31 won 63.5 percent of the vote. Its passage—which Bloomberg celebrated as “a big step toward ending the nation’s teen vaping epidemic”—made California the second state, after Massachusetts, to prohibit retail sales to such an extent, and the fifth to pass some form of vape flavor ban.
Almost immediately after the result, Reynolds filed lawsuits with district and circuit courts, which judges summarily denied. Its previous lawsuit making a similar argument in trying to overturn a flavor ban in Los Angeles County was also rejected. But the escalation to the Supreme Court is unprecedented.
“This request arises from the Ninth Circuit’s decision to effectively ignore the Tobacco Control Act’s express-preemption provision and permit states to completely prohibit the sale of flavored tobacco products for failing to meet state ‘tobacco product standards,’” the application for the emergency order to the Supreme Court reads. “Absent immediate judicial intervention, Applicants will suffer irreparable harm because they will be unable to sell their products in one of the Nation’s largest markets. For example, entities like R.J. Reynolds Tobacco Company will be unable to sell menthol cigarettes—which make up approximately one-third of the cigarette market—in California.”
The “product standard” point is potentially key to the case, because only the FDA, not states, is authorized to issue product standards for nicotine products.
“We do not comment on potential—or ongoing—litigation,” a Reynolds spokesperson told Filter in a statement. “Reynolds is committed to providing adult nicotine consumers a range of acceptable products while ensuring our continued adherence to all applicable laws. We believe that California’s characterizing flavor ban is preempted by federal law and have brought a legal challenge on that basis. We believe that adult nicotine consumers deserve product choice and that prohibition laws—like SB 793—do not work in achieving their intended results.”
“Just because we’re on the same side of an issue doesn’t mean that we ‘support tobacco companies.’”
The strategy by Reynolds, which has the financial resources to go before the Supreme Court, has been accepted—though not necessarily supported—by THR advocates and consumers. Danielle Jones, the board president of CASAA, a member-driven nonprofit that advocates for safer nicotine alternatives, emphasized to Filter that although THR proponents are obviously against prohibition, “the motivations and desired-outcome differences” between advocates and corporations “can be massive.”
“There are times where consumer and tobacco industry interests overlap, and given that tobacco companies have the financial resources to act on those interests in ways that most advocates and consumers do not, we sometimes find ourselves on the same side of the issue,” she told Filter. “Just because we’re on the same side of an issue doesn’t mean that we ‘support tobacco companies.’”
“I’ve always been appreciative of large corporations doing some heavy lifting to engage on matters where ‘small vapor’ simply does not have the resources or expertise to do so,” echoed Stefan Didak, a California-based THR advocate. “Unfortunately it also often means that tobacco control activists continue to falsely claim the issue of flavored vapor is the domain of Big Tobacco.”
Whatever the Supreme Court decides will be sure to have political reverberations for other states.
Whether the Supreme Court will agree with Reynolds’ argument remains to be seen. But whatever it decides will be sure to have political reverberations for other states with—or seeking—flavor bans of their own.
“Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals wrote a concise and incisive dissent in the Los Angeles case that may prove appealing to five or more [Supreme Court] justices,” Greg Conley, the director of legislative and external affairs at American Vapor Manufacturers, told Filter. AVM submitted an amicus brief in support of the applicants on December 1.
“Strictly as a matter of law, it is hard to understand how a law that defines what a product can and cannot contain is not a ‘product standard,’” he continued. “The mere fact that Congress permitted states to regulate how tobacco products are sold and distributed does not mean that power is unlimited.”
An industry insider, who requested anonymity so as not to affect their company’s PMTA applications to the FDA, held a similar sentiment.
“It’s possible,” they told Filter, that Reynolds and the other applicants could succeed. “They have the right lawyer (a former solicitor general), and they are clearly right that a flavor ban is a product standard, and only the FDA can issue product standards.”
“I think the weakness in [the applicants’] position,” they continued, “is that arguably this is simply an outright sales ban on a product (menthol cigarettes) that has not been authorized by the FDA, and the action could in theory be upheld on that ground.”
Photograph by Wil540 via Wikimedia Commons/Creative Commons 4.0
The Influence Foundation, which operates Filter, has received grants from Reynolds American, Inc. Filter’s Editorial Independence Policy applies.