O'Neill Institute | November 30, 2022Read the Publication
States and local governments have been at the forefront of fighting the tobacco epidemic, especially by restricting the sale of kid-friendly flavored tobacco products. The tobacco industry has relentlessly fought to derail these policies through litigation. In the courts, the industry has mainly argued that federal law (the Tobacco Control Act) preempts state laws that restrict selling flavored tobacco.
Although every court that has considered these challenges has upheld flavored tobacco sales restrictions, the tobacco industry remains undeterred from using litigation as strategy against these public health measures. Earlier this month, the tobacco industry challenged California’s recently enacted flavored tobacco sales law, again claiming that that law is preempted. The industry is mounting this challenge despite a recent Ninth Circuit decision that resoundingly rejected the similar claims against a Los Angeles County flavored tobacco ordinance.
This report takes a deeper dive into the preemption arguments that the industry has made and how the courts have rejected them. It also lays out how the Tobacco Control Act does not preclude states from enacting flavored tobacco policies. It further lays out steps the FDA can take to assure states that flavored tobacco restrictions do not conflict with FDA’s regulation of tobacco products.