WASHINGTON — The Supreme Court on Monday declined to block a California law banning flavored tobacco, paving the way for the ban to take effect next week.
As is the court’s practice when deciding emergency applications, its brief order is not reasoned. There were no dissents noted.
RJ Reynolds, the maker of Newport menthol cigarettes, had asked judges to intervene before next Wednesday, when the law is expected to come into effect. The company, joined by several smaller ones, argued that a federal law, the Tobacco Control Act of 2009, allows states to regulate tobacco products but prohibits banning them.
“They can raise the minimum purchase age, restrict sales to particular times and places, and enforce licensing regimes,” attorneys for Reynolds and several small businesses wrote in an emergency request. “But one thing they can’t do is completely ban the sale of these products for failing to meet state or local preferred tobacco product standards.”
State officials responded that the federal law was intended to preserve the longstanding power of state and local authorities to regulate tobacco products and ban their sale. Both before and after the federal law was enacted, they wrote, state and local authorities took action against flavored tobacco and e-cigarettes.
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Whether the federal law supersedes the state law depends on the interpretation of the interwoven and overlapping legislative language in the federal law. State officials told judges that “courts have universally rejected tobacco industry arguments that state and local laws restricting or prohibiting the sale of flavored tobacco products are expressly preempted by this law.”
They added, “Indeed, in the 13 years since Congress enacted ‘the 2009 law,’ no court has endorsed the tobacco industry’s position that the law prevails. on restrictions and bans on the sale of flavored tobacco products”.
Reynolds also lost on that issue in March in a case involving a Los Angeles County ordinance similar to state law. A three-judge split panel of the United States Court of Appeals for the Ninth Circuit in San Francisco ruled that the 2009 law did not supersede the ordinance. Reynolds has asked the Supreme Court to hear this case.
A federal judge reviewing the company’s separate challenge to the state law ruled in November that it was bound by that precedent and declined to block the law.
The law was due to come into force early last year, but it was put on hold while voters considered a referendum to challenge it. The tobacco industry spent tens of millions of dollars supporting the measure, but 63% of voters in the state approved the law in November.
In their brief to the Supreme Court, state officials urged the justices not to delay the law any further. “The unsuccessful referendum campaign has already delayed implementation” of the law by nearly two years, they wrote, “allowing children and teens across the state to be introduced to the deadly habit of tobacco consumption via flavored tobacco products throughout this period”.
The plaintiffs told judges they faced “substantial financial losses” as a result of the law, noting that menthol cigarettes accounted for around a third of the cigarette market.
Allowing a ban on menthol cigarettes, the plaintiffs’ attorneys wrote, “could also have significant negative consequences for communities of color, including African Americans. Because African American smokers in particular disproportionately prefer menthol cigarettes, California’s ban would cause them disproportionate harm, including exposing them to negative encounters with law enforcement.
The argument angered Valerie Yerger, of the University of California, San Francisco, a health policy researcher and founding member of the African American Tobacco Control Leadership Council.
“As we consider the need to protect African Americans from the predatory exploitation of the tobacco industry, we must consider that a ban on menthol will protect them,” Yerger said. “It will not only add years to people’s lives, but it will increase the quality of their lives.”
State officials pointed judges to an April letter from the NAACP to the Food and Drug Administration lamenting what the group called the “blatant marketing practices of the tobacco industry” and the fact that “the African Americans suffer disproportionately from their addiction to cigarettes and the long-term effects of tobacco use.
Last week, the Justice Department announced an agreement to have 200,000 retailers post eye-catching signs about the dangers of cigarettes in their stores. The order takes effect in July and gives retailers three months to post the signs. The agreement settles the terms of a 1999 racketeering lawsuit brought by the US government against tobacco companies, including Reynolds.
Also last week, a Texas federal court judge sided with tobacco companies, blocking an FDA order to place large graphic warnings about the harms of cigarettes on individual packages.
Christina Jewett contributed report.
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