On February 27, 2023, the Supreme Court declined to review the Ninth Circuit’s holding that the federal Tobacco Control Act (TCA) does not preclude localities like Los Angeles County from banning the sale of certain FDA-authorized tobacco products. In 2020 Los Angeles County banned the sale of all flavored tobacco products, including menthol cigarettes. That flavor ban clashes with the TCA’s preemption clause, which prohibits state and local governments from banning the sale of tobacco products for failure to conform to state or local standards that differ from the TCA’s. In its amicus brief urging review, WLF argued that the County cannot escape federal preemption simply by recasting its flavor ban as a regulation of tobacco “sales” rather than tobacco “manufacturing.” Under the TCA, a standard is a standard for preemption purposes no matter how it is enforced or described. Contrary to the view of the panel majority, Congress’s ability to safeguard the federal interests at stake in the TCA does not turn on such wordplay.
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