High court lets stand California ban on flavored tobacco products

newportswiki-300x197Californians have accomplished something that federal regulators have failed to — despite long, difficult campaigning. Voters in the biggest state in the nation not only have banned Big Tobacco from peddling its flavored products that target and exploit communities of color and the young. They also have defeated the industry in its legal challenges.

Big Tobacco had launched urgent appeals of the November ballot initiative banning flavored tobacco products only to see the U.S. Supreme Court decline to consider its case, the New York Times reported:

“As is the [high] court’s practice when it rules on emergency applications, its brief order gave no reasons. There were no noted dissents. R.J. Reynolds, the maker of Newport menthol cigarettes, had asked the justices to intervene before [Dec. 21], when the law is set to go into effect. The company, joined by several smaller ones, argued that a federal law, the Tobacco Control Act of 2009, allows states to regulate tobacco products but prohibits banning them … State officials responded that the federal law was meant to preserve the longstanding power of state and local authorities to regulate tobacco products and to ban their sale. Before and after the enactment of the federal law, they wrote, state and local authorities have taken action against flavored tobacco and e-cigarettes.”

Both the state of California and Los Angeles County had passed laws banning flavored tobacco products — and these measures had sustained legal challenges, too. State officials suspended their legislative efforts, turning to voters for their say:

“The law [banning flavored tobacco products] had been set to go into effect early last year, but it was suspended while voters considered a referendum challenging it. The tobacco industry spent tens of millions of dollars in support of the measure, but 63% of the state’s voters approved the law in November. In their Supreme Court brief, state officials urged the justices not to delay the law any longer. ‘The unsuccessful referendum campaign has already delayed the implementation’ of the law for nearly two years, they wrote, ‘allowing children and teenagers across the state to be initiated into the deadly habit of tobacco use via flavored tobacco products throughout that period.’”

The stakes in this battle were high, as Big Tobacco conceded in its legal filings, in which the industry noted that one flavor — menthol — makes up a third of the cigarette market. Critics have called the industry’s aggressive advertising, marketing, and sales of menthols to black consumers nothing less than predatory and exploitative, leading to cancer, heart disease and other illness, addiction, debilitation, and death in communities of color. Big Tobacco tried to argue to courts that banning menthols discriminated against African Americans who prefer them and put them at risk of greater conflict with law enforcement as they might seek street supplies. As the New York Times reported, however:

“The argument rankled Valerie Yerger, a University of California, San Francisco, health policy researcher and founding member of the African American Tobacco Control Leadership Council. ‘When we look at the need to protect African Americans from the predatory exploitation of the tobacco industry, we need to look at the fact that a menthol ban will protect them,’ Ms. Yerger said. ‘It will not only add years to people’s lives, but it will increase the quality of their life.’ State officials pointed the justices to a letter in April from the NAACP to the Food and Drug Administration lamenting what the group called the ‘egregious marketing practices of the tobacco industry’ and the fact that ‘African Americans suffer disproportionately from being addicted to cigarettes and the effects of long-term tobacco use.’”

The Food and Drug Administration, the federal regulator of tobacco products, has a problematic history with its attempts to oversee flavored products, as the public policy-focused journal Health Affairs has recounted:

“When Congress enacted the Family Smoking Prevention & Tobacco Control Act (TCA) in 2009, it established ‘a special rule for cigarettes’ that prohibited all flavors in cigarettes, except menthol. In other words, while Congress made flavored cigarettes illegal, it is still permissible to sell menthol cigarettes. Congress also did not prohibit other flavored tobacco products, such as cigars, pipe tobacco, or smokeless tobacco. But Congress authorized the FDA to regulate all tobacco products and directed the FDA to determine whether menthol in cigarettes should be prohibited. Congress was ‘especially concerned about proportionately higher rates of menthol cigarette use among African American smokers.’ This concern was well-placed: exempting menthol from the TCA was a huge public health inequity. Prohibiting menthol in cigarettes would have averted the premature loss of around 4,700 Black lives between 2010 and 2020. It would have also prevented about 461,000 African Americans from becoming addicted to nicotine.

“Yet, the FDA did not take action until April 28, 2022, 13 years after Congress enacted the TCA. The FDA proposed a rule that would, if finalized, prohibit the use of menthol in cigarettes. Specifically, the proposed rule would prohibit menthol in all products that meet the definition of ‘cigarette’ under federal law, which also includes cigarette tobacco, roll-your-own tobacco (RYO), and heated tobacco products (such as IQOS). Menthol would also be prohibited in cigarette components or parts … [including] products such as filters, papers, flavor cards, drops, oils, or other additives. Including components or parts in the menthol prohibition would guard against the tobacco industry—which has previously exploited regulatory loopholes—selling menthol in products that can be used with cigarettes. While the rule would prohibit the manufacture, distribution, or sale of menthol cigarettes in the U.S., the prohibition would not apply to cigarettes made for export. The rule focuses on the supply side of the menthol cigarette market and would not prohibit individuals from using or possessing menthol cigarettes. This is important because it focuses the FDA’s limited enforcement resources on manufacturers and sellers who have an economic incentive to market these products. Put another way, the rule would in no way criminalize or penalize the use or possession of menthol cigarettes.”

Even though the agency has proposed to extend its oversight on tobacco, in general, and flavorings, specifically, its regulatory processes can grind. The FDA has conducted “listening sessions,” and taken hundreds of thousands of public comments, many pouring online from a spigot of sentiment primed by Big Tobacco advertising, lobbying, and other measures.

So, while a California flavored tobacco ban advances, the prospective FDA regulation lags, still.

And, as the California politics and policy news site CalMatters has reported, Big Tobacco still will have squeezed from recent months something it puts a top premium on — profits:

“According to reports filed with the state, the tobacco industry-funded campaign spent a little more than $15 million on signature gathering in late 2020. The coalition spent less than $2 million during this year’s actual campaign — a negligible sum by the standards of statewide ballot battles. The Campaign for Tobacco Free Kids, an advocacy group that supported the ban, estimated that the industry made an additional $784 million during that nearly 700-day delay.”

In my practice, I not only see the harms that patients suffer while seeking medical services, but also the clear benefits they may enjoy by staying healthy and far away from the U.S. health care system. It is, according to research conducted in pre-coronavirus pandemic times, fraught with medical errorpreventable hospital acquired illnesses and deaths, and misdiagnoses.

If you don’t smoke, please don’t start. If you smoke, talk to your doctor, and make the challenging effort to stop. There are other ways to do so without taking up vaping. No one argues it is good for you — just that it is less harmful and another possible way to quit smoking. That’s a dubious health argument, akin to asking whether it’s “better” to die in a car or plane crash. Neither thank you. After many months of battling a killer pandemic and with seasonal flu and the respiratory illness RSV raging, does the nation need anything that can worsen people’s lung and heart health, especially as smoking has been shown to inflict major damage on the body with cancer and other terrible diseases?

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information