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Menthol cigarettes and other tobacco products are displayed at a
In June 2020, Edina approved an ordinance prohibiting the sale of flavored tobacco products. R.J. Reynolds brought suit in U.S. District Court, calling the ban in Edina “draconian.” In this photo, menthol cigarettes and other tobacco products are displayed at a store in San Francisco on May 17, 2018. (AP file photo)

Flavored tobacco ban upheld

8th Circuit rejects R.J. Reynolds’ challenge of Edina ordinance

R.J. Reynolds and two convenience stores sued the city of Edina in 2020 after it passed an ordinance banning sale of flavored tobacco products. In R.J. Reynolds Tobacco Company, Et Al. v. City of Edina, Et Al., the 8th U.S. Circuit Court of Appeals held that the Tobacco Control Act (TCA) does not expressly or impliedly preempt the city’s prohibitions on selling flavored tobacco.

Congress passed the TCA in 2009. It authorizes the FDA to set national standards that control the manufacture of tobacco products. The Act has three sections relating to preemption: the Preservation Clause, the Preemption Clause, and the Savings Clause.

The Preservation Clause allows states and cities to go beyond the TCA’s requirements to curb tobacco use. However, the Preemption Clause lays out a few areas where cities cannot regulate beyond the TCA — for instance, they cannot have their own requirements for tobacco product standards. Finally, the Savings Clause qualifies the scope of the Preemption Clause; however, the parties in the case disputed exactly how it altered the meaning of the other two clauses.

In June 2020, Edina approved an ordinance prohibiting the sale of flavored tobacco products, including e-cigarettes, with a taste or smell different than the smell of tobacco. Flavored tobacco products were defined as having tastes or smells including, but not limited to, “menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, fruit, or any candy, dessert, alcoholic beverage, herb or spice.” The ordinance took effect on Sept. 1, 2020.

R.J. Reynolds brought suit on June 17, 2020, in U.S. District Court, calling the ban in Edina “draconian.” While the company stated that it supported efforts to keep youth safe, it characterized the ban as overbroad due to it barring sales to adult tobacco consumers and reaching every flavored tobacco product, from menthol cigarettes to flavored modern oral products.

In district court, R.J. Reynolds advanced an argument that federal law expressly preempted Edina’s ban on flavored tobacco products. Specifically, it argued that the Tobacco Control Act’s Savings Clause “narrows the category of permissible state and local requirements to those that turn on the ‘age’ of the ‘individuals’ buying or using the regulated tobacco products.” It maintained that, even if the Savings Clause extended beyond age-based requirements, the Savings Clause was not intended to allow state and local laws barring a product’s sale and distribution altogether.

Although the court agreed that the Edina ordinance was preempted by the Act’s preemption clause due to imposing a product standard, it determined that it fell within the scope of the Savings Clause on its face. “If a prohibition is a ‘requirement’—and if the Ordinance is a prohibition—then the ordinance is preempted under the preemption clause … but it is saved by the saving clause,” the court wrote.

The 8th Circuit was presented with two different readings of the Savings Clause. The language at issue in the Savings Clause is: “Subparagraph (A) does not apply to requirements relating to the sale, distribution, . . . or use of, tobacco products by individuals of any age.” Subparagraph (A) refers to the Preemption Clause.

“There are two theories on this issue. The first is that ‘does not apply’ means that if something falls under the Savings Clause, it cannot also fall under the Preemption Clause … A State rule either goes into the Preemption ‘bucket’ or the Savings ‘bucket’—but not both,” the court wrote. “The second theory is that ‘does not apply’ means the Savings Clause voids the effect of the Preemption Clause. That is, if a rule falls into the Preemption Clause ‘bucket’ but also relates to sales, it is essentially scooped out of the Preemption Clause bucket and placed into the Savings Clause bucket.”

Noel J. Francisco, Partner-in-Charge Washington at Jones Day, argued on behalf of R.J. Reynolds. “The Savings Clause, then, only saves one type of requirement: it specifically saves requirements relating to the sale of tobacco products but it does not restore the authority to adopt the requirements absolutely prohibiting their sales,” Francisco asserted. “The one thing they can’t do is absolutely prohibit the sale of tobacco products because they don’t meet the city’s preferred tobacco standards.”

The court was unable to resolve how to read the Saving Clause by applying descriptive canons, as it did not yield further clarity on the matter. Nor was the court able to select a reading on the basis of whether the reading furthered the TCA’s purposes, as it found that both readings did. Resolving this issue required the court to consider its traditional understanding of federalism; essentially, it would assume that a state’s police powers were not superseded by a Federal Act unless it was Congress’s clear and manifest purpose.

Finding that the TCA was ambiguous and implicated traditional state police powers, the 8th Circuit found that it must read the Savings Clause in a way that disfavors preemption. It determined that Edina’s reading more effectively limited preemption and preserved traditional state authority.

Dave Kendall, of Campbell Knutson, represented Edina. “The City crafted this ordinance carefully in order to protect the City’s youngest residents from the dangers of tobacco products while also complying with federal law. The court affirmed the traditional power of local government to protect public health, safety and welfare.”

This is not an isolated suit. The tobacco industry has challenged efforts to ban flavored tobacco across the country. Over 25 organizations filed amicus briefs on behalf of the appellees in this case. Thus far, no local ordinance restricting the sale of flavored products has been overturned by federal courts.

On Feb. 27, the United States Supreme Court declined to hear a challenge to Los Angeles County’s ban on sales of flavored tobacco, without comment. R.J. Reynolds argued that only the federal government possessed the legal authority to regulate tobacco products. In December 2022, the Court denied a request by several tobacco companies and retailers to block S.B. 793, a California law barring the sale of flavored tobacco products in the state.

“Local leaders and residents who advocated for the local ordinance believe that flavored tobacco products appeal to youth. Edina’s ban on those products seeks to protect our youngest residents from the dangerous effects of tobacco, including possible addiction,” Edina City Manager Scott Neal stated. “The City of Edina is pleased with the court’s decision. Now we can fully focus on public health education on the dangers of tobacco.”

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