Supreme Court Refuses to Block California’s Nicotine Flavor Ban

    On December 12, the United States Supreme Court said that it would not block California’s flavored nicotine ban, legislation that’s soon set to take effect.

    At the end of November, in something of perhaps a last-ditch effort, R.J. Reynolds and a handful of other tobacco and vapor companies had filed an emergency application for writ of injunction with the Supreme Court, requesting that the enforcement of California’s nicotine flavor ban be stopped.

    They did so after failing to find relief in other lawsuits with district and circuit courts earlier that month, almost immediately after California voters overwhelmingly passed Proposition 31. The November ballot initiative bans sales of almost all flavored nicotine products (including vapes, pouches and menthol cigarettes, but excluding hookah and some premium cigars).

    The legislation behind Prop. 31 had been halted by incessant pushback and legal challenges

    The legislation behind Proposition 31, SB 793, which was passed by lawmakers in 2020, had been halted by incessant pushback and legal challenges from the industry and tobacco harm reduction (THR) proponents.

    The latter argue that, when most adults who switch from smoking to vaping find non-tobacco vape flavors most helpful in doing so, a flavor ban amounts to an incentive to resume smoking. Danielle Jones of CASAA, a member-driven consumer nonprofit, previously described to Filter how motivations between industry and THR advocates differ, saying, “Just because we’re on the same side of an issue doesn’t mean that we ‘support tobacco companies.’”

    The Supreme Court filing did not focus on public health concerns. Instead, Reynolds argued that the ban would cause it “irreparable harm.” Among its products, the company sells Newports, a leading menthol cigarette brand that would be banned under California’s new law. The Food and Drug Administration (FDA), meanwhile, has proposed prohibiting menthol cigarettes on the federal level—a strategy that has been criticized by many racial justice advocates for its likelihood of increasing criminalization, when Black Americans disproportionately smoke menthols.

    Of the other applicants, Modoral Brands, which makes Velo nicotine pouches and is owned by Reynolds, stated that it would be totally shut out of California’s market. And Vapin’ the 619, a San Diego-based retailer, said that it would “likely have to close up shop completely and lay off its employees.”

    “Flavored tobacco products have hooked a new generation of young smokers.”

    “Flavored tobacco products have hooked a new generation of young smokers at a time when tobacco is already the number one preventable killer in the United States,” the attorney general of California, Rob Bonta, said in a press statement. Vapes’ inclusion as “tobacco products” in US nomenclature means that he wrongly implied vaping is a “gateway” to smoking. And cigarette smoking is the number one cause of preventable death—not tobacco per se, which is also found in harm reduction products like snus or “heat-not-burn” devices.

    “I applaud the Supreme Court for denying Big Tobacco’’s latest attempt to block California’s common sense ban on flavored tobacco products,” Bonta continued. “The voters of California approved this ban by an overwhelming margin in the November election and now it will finally take effect. I look forward to continuing to defend this important law against any further legal challenges.”

    It is unclear whether the applicants will try other legal options to block the ban, or how quickly they could do so. As things stand, the legislation will take effect at the end of December. In response to Filter’s question about any further legal moves, a Reynolds spokesperson said the company does “not comment on potential—or ongoing—litigation.”



    Photograph by Mark Fischer via Flickr/Creative Commons 2.0

    The Influence Foundation, which operates Filter, has received grants from Reynolds American, Inc. Filter’s Editorial Independence Policy applies.

    • Alex was formerly Filter’s news editor. He previously worked as a reporter and copy editor at VICE, and has been published in the New York Times Magazine, the Columbia Journalism Review, the Los Angeles Times and the New Republic, among other outlets. He was also previously a freelance editorial consultant for the Foundation for a Smoke-Free World; The Influence Foundation, which operates Filter, has received grants from the Foundation for a Smoke-Free World. He is currently based in Los Angeles.

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