Background
California’s Unflavored Tobacco List statute requires tobacco products to appear on a state list before they may be offered to consumers or to sellers for sale in California. Manufacturers and importers must apply to the Attorney General, provide product and FDA-status information, certify that the product lacks a characterizing flavor, and pay applicable fees. Products promoted as having a characterizing flavor are presumptively flavored, although applicants may rebut that presumption.
Premium-cigar manufacturers and trade associations challenged the law before it took effect. They alleged that the federal Tobacco Control Act preempted the list requirements as applied to premium cigars, which are federally exempt from FDA premarket review if they contain no non-tobacco additives or characterizing flavors. They also contended that the statute chilled protected descriptions of cigars’ tasting notes. The district court denied a preliminary injunction.
The Court’s Holding
The Ninth Circuit affirmed. Assuming without deciding that the Tobacco Control Act’s preemption clause covered the state law as a requirement relating to premarket review, the court held that the Act’s savings clause applied because the list and application process directly relate to California’s prohibition on retail sales of flavored tobacco products. The savings clause is not limited to rules imposed on retailers, and the statute did not set manufacturing standards for premium cigars.
The panel also held that the challengers were unlikely to succeed on their First Amendment claim based on the Attorney General’s representations about administration of the law. For FDA-exempt premium cigars, a completed application identifying the federal exemption automatically rebuts any flavor presumption based on marketing speech, and the Attorney General represented that such speech would not affect list placement. On that record, the court found only a minimal burden on commercial speech and no showing that the law restricted speech more than necessary to serve California’s interest in enforcing its flavored-tobacco sales ban.
Key Takeaways
- A state tobacco-listing requirement tied to a sales ban can fall within the Tobacco Control Act’s savings clause even when it requires manufacturers or importers to apply.
- The Tobacco Control Act preserves state authority over sales restrictions but does not permit states to impose tobacco-product manufacturing standards.
- The court relied on the Attorney General’s stated practice that completed applications for federally exempt premium cigars will not be denied because of flavor-profile descriptions.
Why It Matters
The decision reinforces the Ninth Circuit’s view that the Tobacco Control Act leaves states substantial room to regulate the sale of tobacco products, including through procedures designed to enforce flavored-tobacco sales bans. Premium-cigar businesses challenging comparable laws will need to show that a measure functions as a product standard, rather than as a sales-related restriction.
The First Amendment ruling is closely tied to the state’s representations about how it will administer the statute. The panel noted that a different analysis could be required if those representations prove incorrect.