The U.S. Court of Appeals for the Ninth Circuit has denied the Plaintiffs’/Appellants’ petition for a rehearing en banc following a divided panel’s holding that the Family Smoking Prevention and Tobacco Control Act neither expressly nor impliedly preempts Los Angeles County’s ban on the sale of flavored tobacco products.
On May 11, 2022, a divided panel of the U.S. Court of Appeals for the Ninth Circuit denied a petition for rehearing en banc filed by Plaintiffs/Appellants R.J. Reynolds Tobacco, Inc., American Snuff Co., and Santa Fe Natural Tobacco Co. (together, the “Plaintiffs/Appellants”) in R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 20-55930. As discussed more fully by Troutman Pepper in Vapor Voice, the same panel earlier held in a split 2-1 decision that Los Angeles County’s flavored tobacco ban is not preempted by the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (June 22, 2009) (the “TCA”).
In denying the petition, the panel split the same way that it did on the question whether the TCA preempts Los Angeles County’s ordinance: Judge Lawrence VanDyke and Judge Karen E. Schreier of the U.S. District Court for the District of South Dakota (sitting by designation on the Ninth Circuit) decided against the ordinance’s preemption and against rehearing en banc, and Judge Ryan D. Nelson would have found the ordinance preempted and would have granted rehearing en banc. And the full court having been advised of the petition, no Judge called for a vote on whether to grant a rehearing en banc.
The Plaintiffs/Appellants had requested a rehearing en banc on the argument that the panel’s decision conflicts with Supreme Court decisions and implicates questions of exceptional importance, see Fed. R. App. P. 35(b)(1)(A) & (B), including argument that the decision misconstrues the TCA’s preemption and savings clauses and creates a circuit split. In the Plaintiffs’/Appellants’ view, the panel’s interpretation of the TCA allows “every state and county” to “regulate any property of a tobacco product” and “is a green light to more regulatory bedlam, in clear defiance of the text and purpose of the statute.”
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It remains to be seen whether the Plaintiffs/Appellants will seek further review before the Supreme Court. There also is an appeal pending before the U.S. Court of Appeals for the Eighth Circuit involving similar TCA preemption claims. R.J. Reynolds Tobacco Co., et al. v. City of Edina, et al., No. 20-2852 (8th Cir.), on appeal from No. 0:20-cv-01402 (D. Minn. Aug. 31, 2020).
We will continue to monitor for further developments.