Big Tobacco is trying to stop California’s tobacco ban

RJ Reynolds and other tobacco companies filed a motion Tuesday asking the U.S. Supreme Court to issue an emergency injunction to prevent California from enforcing a ban on flavored tobacco products, which voters overwhelmingly approved earlier this month was accepted.

The ban was first passed by state legislature two years ago, but never went into effect after tobacco companies collected enough signatures to put it on the ballot. But after nearly two-thirds of voters approved the ban on sales of everything from cotton candy vapor juice to methanol cigarettes, it is due to go into effect by December 21.

Proponents of the ban say the law was necessary to stem a staggering rise in teenage smoking.

RJ Reynolds filed a federal lawsuit a day after the Nov. 8 vote, but the 9th Circuit Court of Appeals on Tuesday denied the company’s summary motion to block the law, which is pending appeal.

The tobacco giants argue that the power to ban flavored products lies in federal law. The Family Smoking Prevention and Tobacco Control Act gives the Food and Drug Administration the power to regulate tobacco. The companies are represented by Noel Francisco, who served as the Trump administration’s chief counsel on the Supreme Court.

California will become the second state in the nation, after Massachusetts, to enact a ban banning the sale of all flavored tobacco products. A number of California cities, including Los Angeles and San Diego, have already enacted their own bans, and several states have banned flavored vaping products. So far, no legal challenges to these bans have prevailed.

But tobacco companies have been pushing particularly hard not to be locked out of a large chunk of California’s massive market.

In the filing, the companies said they would suffer “irreparable harm” if they couldn’t sell the products in one of the country’s largest markets. According to RJ Reynolds, the maker of Newport menthol cigarettes, menthol cigarettes account for one-third of the California cigarette market. Modoral Brands Inc. only manufactures flavored tobacco products and is at risk of losing millions, the filing said.

The companies argued that small retailers will face layoffs and possible closure. Among the applicants is the Neighborhood Market Association, a group of San Diego retailers that includes vape shops.

It is already illegal for retailers to sell tobacco to anyone under the age of 21. However, supporters of the ban said flavored cigarettes and vaping cartridges are still too easy to come by for youngsters. The ban doesn’t make it a crime to possess such products, but retailers who sell them could be fined up to $250.

In addition to menthol and other flavored cigarettes, the ban also prohibits the sale of flavored tobacco for vape pens, tank-based systems and chewing tobacco, with the exception of hookahs, some cigars and loose tobacco.

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