Industry challenges a local flavored tobacco product ordinance adopted by the City of Edina, Minnesota, arguing that the ordinance is preempted by the Tobacco Control Act.
Why It Matters for Public Health
The Tobacco Industry, led by R.J. Reynolds, has brought numerous lawsuits challenging local efforts to enact flavored tobacco product sales restrictions. This is yet another example of that ongoing, multidistrict effort. Despite those efforts, no local ordinance restricting the sale of flavored products has yet been overturned by a court, including in this case. While the district court’s reasoning was different in this case than in other cases dealing with preemption of local flavor restrictions, the court upheld the ordinance, further underscoring the ability of local governments to enact flavored tobacco product sales restrictions.
On June 16, 2020, the Edina, Minnesota City Council approved an ordinance that prohibits the sale of any flavored tobacco product that has a taste or smell other than the taste or smell of tobacco, including candy, dessert, herbs species, and critically, mint and menthol. This prohibition also includes flavored e-cigarettes. The ordinance took effect on September 1, 2020.
District Court Proceedings
On June 17, 2020, R.J. Reynolds and two convenience stores filed suit against the City of Edina, challenging the constitutionality of the ordinance.
The complaint alleged that:
- Edina's ordinance is expressly preempted by the Tobacco Control Act (TCA) because the TCA preempts local and state governments from setting tobacco product standards; and
- Edina’s law is impliedly preempted because Edina’s ordinance prohibits the sale of menthol cigarettes, which the TCA specifically allows, resulting in conflict preemption.
On July 9, 2020, R.J. Reynolds filed a motion for a preliminary injunction. On July 23, 2020, the City filed a motion to dismiss the lawsuit. A hearing on both motions was held on August 20, 2020.
On August 31, 2020, the court denied R.J. Reynolds’ motion for a preliminary injunction and granted the City’s motion to dismiss. The judge’s reasoning differed from earlier courts’ analysis of this issue, however, in that it found that the flavor regulation was in fact a product standard under the Tobacco Control Act. Other courts considering this issue have found that flavored product sales restrictions are not product standards because rather than regulate how the products are made, sales restrictions simply apply to the sale of a finished product. See e.g. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 434–35 (2d Cir. 2013).
The Minnesota district court’s reasoning is distinguishable because it does not rest on a distinction between sales and manufacturing/additives. Rather, it determined that the authority to issue “product standards” in the Tobacco Control Act includes the authority to restrict “the sale and distribution of a tobacco product” to the extent it is necessary for the protection of public health. See 21 U.S.C. § 387g(a). The court also found the fact that the Tobacco Control Act itself includes a specific product standard that restricts the sale of flavored cigarettes (other than tobacco and menthol) compelling. See 21 U.S.C. § 387g(a)(1)(A). The court concluded that because “‘tobacco product standards’ are not limited to provisions that relate to manufacturing processes and components,” and “include…restrictions on the ‘sale and distribution of [a] tobacco product,’” the Edina ordinance qualifies as a tobacco standard. In effect, the court concluded that there was no difference between a flavor restriction and a restriction on certain ingredients.
Importantly, however, the court concluded that even though the Edina ordinance imposed a product standard, and is therefore preempted by the Act’s preemption clause, it is nonetheless saved by the saving clause because it is a “requirement relating to the sale . . . of . . . tobacco products by individuals of any age . . . .” 21 U.S.C. § 387p(a)(2)(B).
The court also dismissed the industry’s argument that the Edina ordinance is impliedly preempted by the Tobacco Control Act because it does not act as an obstacle to Congress’ desire for uniformity in manufacturing standards or premarket review processes. Further, the court determined there is no evidence that FDA has exclusive authority to regulate menthol—in fact, the court states, “[t]he federal government has—through inaction [on menthol]—left countless matters to be regulated by state and local governments.”
In short, while the reasoning differs from other courts considering federal preemption of flavored tobacco product sales restrictions, the conclusion is the same—the Edina ordinance is not expressly, nor impliedly, preempted by the Tobacco Control Act.
Proceedings in the U.S. Court of Appeals for the 8th Circuit
On September 4, 2020, the industry plaintiffs appealed the case to the U.S. Court of Appeals for the 8th Circuit. The two parties have submitted their briefs. Additionally, on December 2, 2020, the Public Health Law Center, joined by twenty-four other national public health and medical organizations, filed an amicus brief at the U.S. Court of Appeals for the 8th Circuit on behalf of Edina. Our brief argues that the Tobacco Control Act preserves long-established state and local state governmental authority over tobacco product sales within their borders; that Edina’s restriction on the sale of flavored tobacco products is not a “product standard” preempted by the Tobacco Control Act; and that it is also not impliedly preempted, because local sales bans on flavored tobacco products do not pose an obstacle to the FDA’s regulatory authority. Oral arguments in the case were held before the 8th Circuit on May 12, 2021.
The case is currently on appeal in the 8th Circuit Court of Appeals. Oral arguments were heard before a panel of three Eighth Circuit judges on May 12, 2021.