LOCAL FLA OCAL FLAVOR LITIGA OR LITIGATION: TION: WHAT’S THE SCOOP?
THE THE PUBLIC PUBLIC HEAL HEALTH TH LA LAW W CENTER CENTER 11/12/2020 2
COMMER COMMERCIA CIAL L TOB OBACCO C CCO CONTR ONTROL TEAM OL TEAM 11/12/2020 3
LEGAL LEGAL TECHNICAL TECHNICAL ASSIST ASSISTANCE ANCE Legal Research Policy Development, Implementation, Defense Publications Trainings Direct Representation Lobby 11/12/2020 4
LEGAL LEGAL TECHNICAL TECHNICAL ASSIST ASSISTANCE ANCE Tribal State Federal Local 11/12/2020 5
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WHA WHAT ARE WE T T ARE WE TALKING ABOUT? ALKING ABOUT? HEALTH HEAL TH EQUITY EQUITY , DISP , DISPARITIES: T ARITIES: TOB OBACCO CCO • Commercial tobacco use is a major contributor to the three leading causes of death among Black Americans — heart disease, cancer, and stroke. – Black Americans are more likely to be diagnosed with and die from lung cancer than any other population group in the U.S. (NIH, NCI) • The tobacco industry has historically and aggressively marketed commercial tobacco products, and particularly menthol-flavored products, to young people and African Americans, especially in urban and low socioeconomic neighborhoods. HealthITAnalytics 11/12/2020 7
TODAY’S AGENDA: 1. Overview of major flavored tobacco legislation and litigation 2. Overview of active flavored tobacco litigation California – Jamie Long a. Minnesota & Philadelphia – Kyra Hill b. 3. What does this mean for public health? a. Context, lessons learned, and messaging for communities working on flavored tobacco regulation – Natasha Phelps 4. Q & A 11/12/2020 8
FEDER FEDERAL C AL CONTEXT ONTEXT • 2009 Family Smoking Prevention and Tobacco Control Act – Did not include menthol flavored cigarettes – FDA has also not yet acted on flavored cigars, smokeless tobacco, hookahs, and certain e-cigarette products 11/12/2020 9
LITIGA LITIGATION CHALLENGES TION CHALLENGES THE THE FOUND FOUNDATION TION 11/12/2020 10
Preemption Express Implied Field Conflict Impossibility Obstacle 11/12/2020 11
CALIFOR CALIFORNIA NIA PREEMPTION CASES PREEMPTION CASES Case RJR v. RJR v. San N’hood Mkt. RJR v. CA Smoke CA Smoke Becerra Diego Cty. Assn. v. San L.A. Cty. and Vape v. and Vape v. Diego Cty. L.A. Cty. Palmdale When filed Oct 2020 July 2020 June 2020 June 2020 May 2020 June 2020 Flavor ban targeted SB793 San Diego Cty San Diego Cty L.A. Cty L.A. Cty Palmdale TCA preemption claim? Yes Yes Yes Yes Yes Yes Implied preemption claim? Yes Yes Yes Yes Yes Yes Status Pending Pending Pending Dismissed, Dismissed Withdrawn, appealed July 2020 11/12/2020 12
SB79 SB793 • Aug. 24: Passes Assembly 58-1 • Aug. 28: Passes Senate 34-0 • Bans sale of flavored tobacco products – Exemptions for hookah, premium cigars, pipe tobacco • “Characterizing flavor” includes mint and menthol • Referendum challenge pending – Effort funded by RJ Reynolds and Phillip Morris 11/12/2020 13
SB79 SB793 11/12/2020 14
SB79 SB793 CA 3 CASE SE R.J. Reynolds Tobacco Co. et al. v. Becerra • Express preemption by TCA – Argue that SB793 sets a tobacco product standard • Implied preemption – Argue that SB793 “thwarts the TCA’s objectives” • Dormant commerce clause • Case is scheduled for argument on December 10 11/12/2020 15
SAN SAN DIEGO DIEGO COUNTY CASES COUNTY CASES Neighborhood Market Assn. et al v. Cty. of San Diego R.J. Reynolds Tobacco Co. et al v. Cty. of San Diego • Policy prohibits sale of flavored tobacco products, except for hookah; pauses e-cigarette sales for 1 year • Challenges based on express preemption by TCA and implied preemption – Hookah exemption targeted • Set for hearing on December 10 on motions to dismiss and motions for preliminary injunction 11/12/2020 16
PALMD ALMDALE ALE CASE CASE CA Smoke & Vape Assn. v. City of Palmdale • Policy prohibits the sale of all flavored e-cigarettes • Challenge based on express and implied federal preemption • Transferred to same judge that later dismissed L.A. County cases • Plaintiffs voluntarily dismissed case in July 2020 11/12/2020 17
PAL ALO O AL ALTO CASE O CASE David Zoumut et al vs. City of Palo Alto • Ordinance restricts the sale of flavored tobacco products and all e-cigarettes • Initially had economic hardship exemption, but it was eliminated • Fifth Amendment takings claim • Rights & liberties protected by Cal. Const. Art. 1, Sec. 1 • Equal protection • Court denied plaintiff’s summary judgment motion 11/12/2020 18
L.A. COUNTY CASES L.A. COUNTY CASES CA Smoke & Vape Assn. v. Cty. of Los Angeles R.J. Reynolds Tobacco Co. v. Cty. of Los Angeles • Policy prohibits sale of all flavored tobacco products • Challenge based on federal preemption Also vagueness (14 th Amendment due process) • • Both cases dismissed with prejudice on Aug. 7: – “A prohibition on the sale of a distinct product is simply not a product standard.” R.J. Reynolds appealed to the 9 th Circuit in Sept. 2020 • 11/12/2020 19
MINNESO MINNESOTA CASES A CASES Case RJR v. City of Arden Hills Edina Tobacco v. City of Arden Hills When filed June 2020 September 2019 Flavor ban targeted Edina Arden Hills TCA preemption claim? Yes Yes Status On appeal to the Pending 8 th Circuit Court of Appeals 11/12/2020 20
EDIN EDINA A CASE CASE R.J. Reynolds Tobacco Co. et al. v. City of Edina • Policy eliminates the sale of all flavored tobacco products • Express and implied preemption by TCA – Argues that Edina’s ordinance imposes a product standard • District Court ruled that while the flavor restriction is a product standard, the savings clause of the TCA preserves right to prohibit the sale of tobacco products Currently on appeal in the 8 th Circuit Court of Appeals • 11/12/2020 21
CITY OF CITY OF ARDEN ARDEN HILLS CASE HILLS CASE Arden Hills Tobacco v. City of Arden Hills • Policy eliminates the sale of all flavored tobacco products • Challenge filed in MN state court • Retailer argues preemption; equal protection; vagueness takings, and more • City has agreed to injunction • Settlement conference scheduled for May 2021 11/12/2020 22
PENNSYL PENNSYLVANIA CASES ANIA CASES Case Cigar Assn. of Asian American America v. City of Licensed Bev. Assn. Philadelphia v. City of Philadelphia When filed July 2020 July 2020 Flavor ban targeted Philadelphia Philadelphia Preemption claim? Yes-state law Yes-state law preemption preemption Status Pending Pending 11/12/2020 23
PHILADEL PHILADELPHIA CAS PHIA CASES ES Cigar Assn. of America. v. City of Philadelphia • Ordinance prohibits the sale of all flavored tobacco products except adult-only retailers • Challenge based on state preemption, due process, and vagueness • Oral argument on preliminary injunction held 10/7 11/12/2020 24
PHILADEL PHILADELPHIA CAS PHIA CASES ES Asian American Beverage Licensed Beverage Assn. of Philadelphia et al. v. City of Philadelphia • Ordinance prohibits the sale of all flavored tobacco products except adult-only retailers • Challenge based on two separate state preemption claims — one under the state Fiscal Code and one under the general Local Government Code • Challengers request injunction to delay implementation of the ordinance until lawsuit is resolved 11/12/2020 25
LOCAL A OCAL ACTION ON CTION ON FLA FLAVORED T ORED TOB OBACCO CCO 5 KEY 5 KEY TAKEA AKEAWA WAYS FR S FROM LITIGA OM LITIGATION TION SUMM SUMMAR ARY 11/12/2020 26
CONTEXT, CONTEXT , LESSONS, LESSONS, MESSA MESSAGING: GING: #1 #1 LOCAL ACTION: BECAUSE IT’S LEGAL What we know: • All of the cases that have been resolved to date upheld the sales restrictions. – All decisions issued in flavored tobacco regulation to-date have been in favor of public health. – Communities are not preempted from passing flavored tobacco sales restrictions – including full bans. • The tobacco industry is deeply concerned about momentum for policy change. – But this shows the importance of continuing, not pausing or ending flavored tobacco policy work. 11/12/2020 27
CONTEXT CONTEXT, , LESSONS, LESSONS, MESSA MESSAGING: GING: #2 #2 LOCAL OCAL ACTION: BECA CTION: BECAUSE NO USE NOW W IS THE IS THE TIME TIME Stanford Tobacco Research 11/12/2020 28
CONTEXT CONTEXT, , LESSONS, LESSONS, MESSA MESSAGING: GING: #2 #2 LOCAL OCAL ACTION: BECA CTION: BECAUSE NO USE NOW W IS THE IS THE TIME TIME Bloomberg 11/12/2020 29
CONTEXT CONTEXT, , LESSONS, LESSONS, MESSA MESSAGING: GING: #2 #2 LOCAL OCAL ACTION: BECA CTION: BECAUSE NO USE NOW W IS THE IS THE TIME TIME Counter Tools 11/12/2020 30
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