# R. J. Reynolds Tobacco Company v. Bonta

> District Court, S.D. California · March 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10087315

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087315

## How later opinions describe it (automated extraction)

- affirming a Tennessee law making it a misdemeanor 8 to sell cigarettes in Tennessee
- finding a law banning the sale of a product that was “the result of force 3 feeding birds” was not discriminatory when the ban applied to both intrastate and interstate 4 products
- finding a law banning the possession and sale of shark fins in California was 28 not discriminatory where out-of-state shark fins would not be able to be sold in California
- declining to find a dormant Commerce Clause violation 11 where the only burden identified was plaintiffs’ financial losses

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 R.J. REYNOLDS TOBACCO Case No.: 22-cv-01755-CAB-WVG
COMPANY, et al,
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ORDER GRANTING MOTION TO
Plaintiffs,
13 DISMISS
v.
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[Doc. Nos. 31, 32]
ROBERT BONTA, in his official capacity
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as Attorney General of California; and
16 SUMMER STEPHAN, in her official
capacity as District Attorney for the
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County of San Diego,
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Defendants.
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This matter is before the Court on Defendants’ motion to dismiss [Doc. No. 31].1
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The motion has been fully briefed, and oral argument was held on March 14, 2023. For the
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reasons set forth below, the motion is GRANTED.
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I. BACKGROUND
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In November 2022, California voters approved Senate Bill 793 (“S.B. 793”), a bill
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prohibiting the retail sale of “flavored tobacco products” within the State of California.
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1 Defendant Summer Stephan filed a motion for joinder [Doc. No. 32] in Defendant Attorney General
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1 S.B. 793 as codified states that “a tobacco retailer, or any of the tobacco retailer’s agents
2 or employees, shall not sell, offer for sale, or possess with intent to sell or offer for sale, a
3 flavored tobacco product or a tobacco product flavored enhancer.” Cal. Health & Safety
4 Code § 104559.5(b)(1). As mentioned in the Complaint, “the original motivation for
5 California’s ban on flavored tobacco products was to prevent youth usage of tobacco
6 products.” [Doc. No. 1 at ¶ 24]. The California legislature engaged in several deliberations
7 prior to writing the final bill, considering statistics about youth usage of flavored tobacco
8 products and evidence related to the deaths and harms caused by the sustained use of
9 tobacco. [Doc. No. 31 at 12].
10 On November 9, 2022, immediately following the November 2022 election,
11 Plaintiffs brought this lawsuit against Defendants Attorney General Robert Bonta and San
12 Diego County District Attorney Summer Stephan. The Complaint alleges that S.B. 793
13 (1) is preempted by the Smoking Prevention and Tobacco Control Act, (“TCA”) Pub. L.
14 No. 111-31, 123 Stat. 1776 (2009) and (2) violates the dormant Commerce Clause.2 The
15 Ninth Circuit’s decision in R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th
16 542 (9th Cir. 2022), cert. denied sub nom., R.J. Reynolds Tobacco Co. v. County of Los
17 Angeles, CA, No. 22-338, 2023 WL 2227660 (U.S. Feb. 27, 2023), bars the Preemption
18 claim. Thus, the only question for this Court to consider is whether Plaintiffs have
19 sufficiently stated a claim under the dormant Commerce Clause.
20 II. STANDARD FOR REVIEW
21 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense
22 that the complaint “fail[s] to state a claim upon which relief can be granted”—generally
23 referred to as a motion to dismiss. The Court evaluates whether a complaint states a
24 recognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure
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27 2 Plaintiffs also filed a motion for preliminary injunction and injunction pending appeal [Doc. No. 13]
pertaining to their Preemption claim. This Court denied that motion, and the denial was later affirmed by
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1 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader
2 is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,’ . . . it
3 [does] demand . . . more than an unadorned, the defendant-unlawfully-harmed-me
4 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
5 Twombly, 550 U.S. 544, 555 (2007)).
6 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
7 accepted as true, to ‘state a claim of relief that is plausible on its face.’” Id. (quoting
8 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible
9 when the collective facts pled “allow . . . the court to draw the reasonable inference that
10 the defendant is liable for the misconduct alleged.” Id. There must be “more than a sheer
11 possibility that a defendant has acted unlawfully.” Id. Facts “merely consistent with a
12 defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly,
13 550 U.S. at 557). The Court need not accept as true “legal conclusions” contained in the
14 complaint, id., or other “allegations that are merely conclusory, unwarranted deductions of
15 fact, or unreasonable inferences,” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
16 (9th Cir. 2010).
17 III. DISCUSSION
18 Defendants argue S.B. 793 does not violate the dormant Commerce Clause because
19 it does not directly regulate out-of-state commerce, favor in-state businesses, or impose
20 excessive burdens on out-of-state commerce. Plaintiffs argue S.B. 793 violates the dormant
21 Commerce Clause because it attempts to control the actions of out-of-state manufacturers.
22 Plaintiffs fail to state a claim.
23 A. Dormant Commerce Clause
24 The Commerce Clause grants Congress the power to “regulate Commerce with
25 foreign Nations, and among the several States, and with Indian tribes.” U.S. Const. art. I,
26 § 8, cl. 3. The Clause “has long been understood to have a ‘negative’ aspect that denies the
27 States the power unjustifiably to discriminate against or burden the interstate flow of
28 articles of commerce.” Oregon Waste Sys., Inc. v. Dep’t of Env’t Quality of State of Or.,
1 511 U.S. 93, 98 (1994). This “dormant” Commerce Clause is “driven by concern about
2 ‘economic protectionism—that is, regulatory measures designed to benefit in-state
3 economic interests, by burdening out-of-state competitors.’” Dep’t of Revenue of Ky. v.
4 Davis, 553 U.S. 328, 337-38 (2008) (quoting New Energy Co. of Ind. v. Limbach, 486 U.S.
5 268, 273-74 (1998)).
6 The dormant Commerce Clause is violated if a state regulation discriminates against
7 interstate commerce. “If a statute discriminates against out-of-state entities on its face, in
8 its purpose, or in its practical effect, it is unconstitutional unless ‘it serves a legitimate local
9 purpose, and this purpose could not be served as well by available nondiscriminatory
10 means.’” Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1087 (9th Cir. 2013)
11 (quoting Maine v. Taylor, 477 U.S. 131, 138 (1986)). The dormant Commerce Clause also
12 bars states from discriminating against out-of-state entities by “directly control[ling]
13 commerce occurring wholly outside the boundaries of a State,” also known as the
14 extraterritoriality doctrine. Healy v. Beer Inst. Inc., 491 U.S. 324, 336 (1989). Finally, if a
15 state regulation is not discriminatory, it should be upheld, “unless the burden imposed on
16 [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v.
17 Bruce Church, Inc., 397 U.S. 137, 142 (1970).
18 1. S.B. 793 Does Not Discriminate Against Out-Of-State
19 Commerce
20 A statute is not “invalid merely because it affects in some way the flow of commerce
21 between the states.” Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 371 (1976). A
22 statute that “treat[s] all private companies exactly the same” does not discriminate against
23 interstate commerce. See United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste
24 Mgmt. Auth., 550 U.S. 330, 342 (2007). The Ninth Circuit has further found that a state
25 law ban that treats all entities the same and prohibits an item regardless of its origin is not
26 discriminatory. See Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1146 (9th
27 Cir. 2015) (finding a law banning the possession and sale of shark fins in California was
28 not discriminatory where out-of-state shark fins would not be able to be sold in California);
1 See also Ass’n des Eleveurs de Canards et d’Oies due Quebec v. Harris, 729 F.3d 937, 948
2 (9th Cir. 2013) (finding a law banning the sale of a product that was “the result of force
3 feeding birds” was not discriminatory when the ban applied to both intrastate and interstate
4 products).
5 Plaintiffs have not alleged facts sufficient to demonstrate that S.B. 793 is
6 discriminatory on its face, in its purpose, or in its practical effects. The text of S.B. 793
7 does not expressly discriminate against out-of-state entities, as it only regulates the actions
8 of retailers in California. See Cal. Health & Safety Code § 104559.5. Additionally, the
9 purpose of S.B. 793 was to promote the health and safety of California residents, not
10 discriminate against out-of-state entities.
11 Plaintiffs’ opposition argues that the practical effects of S.B. 793 “fall almost
12 entirely on out-of-state entities” because the majority of flavored tobacco products are
13 manufactured outside of California. [Doc. No. 34 at 5]. Specifically, Plaintiffs argue that
14 S.B. 793 “tells out-of-state tobacco manufacturers that they may not add characterizing
15 flavors to their tobacco products before distributing them for retail sale in one of the
16 Nation’s largest markets.” [Doc. No. 34 at 5]. There is no such assertion in the language of
17 S.B. 793. Manufacturers are only mentioned in S.B. 793 in reference to how retailers are
18 to determine whether a product constitutes a prohibited flavored tobacco product. See §
19 104559.5. Furthermore, the only discrimination alleged in the Complaint is that out-of-
20 state Plaintiffs are harmed because the ban “severely restricts their ability to market and
21 sell such products to customers in California.” [Doc. No. 1 at ¶ 52]. The Complaint does
22 not assert that S.B. 793 attempts to treat any out-of-state entities differently from in-state
23 entities. All manufacturers, regardless of geographic location, are now potentially
24 restricted in the marketability and sale of flavored tobacco products. For these reasons, the
25 Court does not find that S.B. 793 discriminates against out-of-state entities.
26 2. S.B. 793 Does Not Violate the Extraterritoriality Doctrine
27 A statute that “controls commerce occurring wholly outside the boundaries of a State
28 exceeds the inherent limits of the enacting State’s authority and is invalid regardless of
1 whether the statute’s extraterritorial reach was intended by the legislature.” Healy, 491 U.S.
2 at 336. However, the extraterritoriality doctrine as applied in Healy extends only to price-
3 fixing statutes. See Ass’n des Eleveurs de Canards et d’Oies due Quebec, 729 F.3d at 951
4 (finding Healy inapplicable where the state statute did not impose any prices for the banned
5 products and did not tie in-state prices to out-of-state prices). Furthermore, even if a statute
6 has “significant extraterritorial effects,” it does not violate the dormant Commerce Clause
7 “when those effects result from the regulation of in-state conduct.” Chinatown
8 Neighborhood Ass’n, 794 F.3d at 1145.
9 Plaintiffs argue that S.B. 793 violates the extraterritoriality doctrine because its
10 practical effects fall solely on out-of-state entities. In oral argument, Plaintiffs cited Healy
11 as a basis for its extraterritoriality argument, but Healy is inapplicable. S.B. 793 is not a
12 price-fixing statute, as it does not impose any prices for flavored tobacco products or relate
13 California prices to out-of-state prices for these products. Additionally, any significant
14 extraterritorial effects of S.B. 793 would result from the regulation of conduct occurring
15 only in California. S.B. 793 solely controls the actions of retailers located within California
16 by preventing them from selling flavored tobacco products. S.B. 793 does not control the
17 retail sales of these products in other states, nor does it control the ability of manufacturers
18 in or outside of California to continue manufacturing flavored tobacco products. In fact,
19 manufacturers are still permitted to manufacture flavored tobacco products in California.
20 Accordingly, the Court does not find that the extraterritoriality doctrine is implicated
21 by S.B. 793, and Plaintiffs have not established that S.B. 793 is discriminatory on its face,
22 in its purpose, or in its practical effect.
23 3. S.B. 793 Does Not Unduly Burden Out-of-State Entities
24 A nondiscriminatory state law may still be invalidated under the dormant Commerce
25 Clause if it substantially burdens interstate commerce. Nat’l Ass’n of Optometrists &
26 Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 528 (9th Cir. 2009). “A Plaintiff must
27 first show that the statute imposes a substantial burden before the Court will determine if
28 the benefits of the challenged law are illusory.” Ass’n des Eleveurs de Canards et d’Oies
1 du Quebec, 729 F.3d at 951-52. Most statutes that impose a burden on interstate commerce
2 do so because they are discriminatory. Id.
3 Plaintiffs make the conclusory allegation that the “ban imposes burdens on out of
4 state commerce,” [Doc. No. 1 at ¶ 66], but they do not allege facts supporting this
5 conclusion. In their opposition, Plaintiffs argue that out-of-state commerce is burdened by
6 forcing out-of-state manufacturers to change their operations, with costs of “tens of billions
7 of dollars.” [Doc. No. 34 at 13]. Even if the Court were to accept that S.B. 793 would cause
8 financial loss to the tobacco industry, that burden alone is not excessive enough for the
9 Court to find that the ban substantially burdens interstate commerce. See Nat’l Ass’n of
10 Optometrists, 567 F.3d at 528 (declining to find a dormant Commerce Clause violation
11 where the only burden identified was plaintiffs’ financial losses).
12 Plaintiffs’ argument that S.B. 793 unconstitutionally undermines the requirement for
13 national uniform standards in the production of flavored tobacco products is unpersuasive.
14 S.B. 793 does not impose any standard of manufacturing on tobacco products. It does not
15 require manufacturers to grow or process their products in any particular manner that
16 departs from any national uniform standard. Plaintiffs have not demonstrated how S.B.
17 793’s prohibition of the retail sale of flavored tobacco products within the State of
18 California requires out-of-state manufacturers to change or depart in any way from
19 nationally uniform standards of production of such products.
20 S.B. 793 does not set standards of manufacture or marketing contrary to federal
21 national standards, it is California’s decision to opt out of the market for those flavored
22 tobacco products. The TCA expressly preserved to state authority the right to place
23 restrictions on the retail sale of a tobacco product, including its sale altogether. See Cnty.
24 of Los Angeles, 29 F.4th at 555 (“Congress allowed the federal government to set the
25 standards regarding how a product would be manufactured and marketed, but has left
26 states, localities, and tribal entities the ability to restrict or opt out of that market
27 altogether.”). S.B. 793 does not unconstitutionally violate federal regulation of tobacco
28 product manufacture.
1 Plaintiffs’ argument, citing Schollenberger v. Pennsylvania, 171 U.S. 1, 25 (1898),
2 that a state law that bans within its state the sale of federal taxed products is invalid is also
3 not persuasive. Under the TCA provisions, Congress allows states to place restrictions,
4 including bans, on the retail sale of federally taxed tobacco products within a state.
5 California is not bound to furnish a market for flavored tobacco products even if by opting
6 out of that market it lessens the revenue of the general government. See Austin v.
7 Tennessee, 179 U.S. 343, 349, (1900) (affirming a Tennessee law making it a misdemeanor
8 to sell cigarettes in Tennessee).
9 For these reasons, the Court does not find that an undue burden has been imposed
10 by S.B. 793. 3
11 B. Leave to Amend
12 Plaintiffs ask the Court to grant leave to amend or stay this case until the Supreme
13 Court issues a decision in National Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir.
14 2021). Leave to amend may be denied “if the proposed amendment either lacks merit or
15 would not serve any purpose because to grant it would be futile in saving the plaintiff’s
16 suit.” Chinatown Neighborhood Ass’n, 794 F.3d at 1144. The Court finds that any future
17 amendment would be futile. The Court also declines to stay this case pending the decision
18 in National Pork.
19 IV. CONCLUSION
20 Because Plaintiffs’ first claim of Preemption is barred by the Ninth Circuit’s decision
21 in County of Los Angeles, Plaintiffs’ Preemption claim (Count One) is DISMISSED as
22 moot. Because S.B. 793 does not discriminate against or impose an undue burden on
23 interstate commerce, the Court finds that the Complaint has not stated a claim under the
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27 3 Because S.B. 793 is not discriminatory and does not impose a significant burden on interstate
commerce, the Court need not assess the benefits of the law and the availability of less-burdensome
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1 |}dormant Commerce Clause. Accordingly, Plaintiffs’ dormant Commerce Clause claim
2 ||(Count Two) is hereby DISMISSED with prejudice.
3 It is SO ORDERED.
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5 Dated: March 15, 2023 (6
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Hon. Cathy Ann Bencivengo
7 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087315. Public record. Not legal advice.