As many in the tobacco industry know, there is a growing trend among state and local governments to prohibit or restrict the sale of flavored tobacco or nicotine products. Some governments are focusing on narrow subsets of flavored tobacco or nicotine products, like vapor products or electronic cigarettes, while others are intent on a broader prohibition or restriction that might include more traditional products like cigarettes, cigars, or smokeless tobacco. At the state level, Attorneys General have been at the forefront of the ensuing legal battles over this type of legislation.
In 2019, Massachusetts became the first state to impose permanent restrictions on the sale of all flavored tobacco products, including menthol cigarettes and cigars. In 2020, New Jersey, New York, and Rhode Island banned the sale of flavored electronic cigarettes. Then, in August 2020, California passed broad legislation that would ban the retail sale of flavored electronic cigarettes, smokeless tobacco, and cigars (except “premium” cigars), set to take effect on January 1, 2021.
Soon after California passed the flavor ban legislation, on October 9, 2020, a group of tobacco manufacturers and retailers (Plaintiffs) sued the State in federal court seeking to invalidate the law. In an effort to obtain a preliminary injunction against the new law’s enforcement, Plaintiffs argued that:
- They are likely to succeed on the merits because the Family Smoking Prevention and Tobacco Control Act of 2009 (TCA) preempts California’s law;
- They will be irreparably harmed because the California law is unconstitutional and will cause them substantial financial