Petition for Writ of Certiorari — R.J. Reynolds Tobacco Company, et al., Petitioners v. County of Los Angeles, California, et al.

No. 22-____

IN THE

Supreme Court of the United States

R.J. REYNOLDS TOBACCO COMPANY;

AMERICAN SNUFF COMPANY; AND

SANTA FE NATURAL TOBACCO COMPANY,

Petitioners,

v.

COUNTY OF LOS ANGELES; COUNTY OF LOS ANGELES

BOARD OF SUPERVISORS; AND HILDA L. SOLIS,

HOLLY MITCHELL, SHEILA KUEHL,

JANICE HAHN, AND KATHRYN BARGER,

EACH IN HER OFFICIAL CAPACITY AS A MEMBER

OF THE BOARD OF SUPERVISORS,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

NOEL J. FRANCISCO

Counsel of Record

CHRISTIAN G. VERGONIS

RYAN J. WATSON

ANDREW J. M. BENTZ

CHARLES E.T. ROBERTS

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

Counsel for Petitioners

i

QUESTION PRESENTED

Twice in the last two decades, this Court has

reversed the Ninth Circuit for allowing states and

localities to use sales bans to evade express federal

preemption of state and local standards. In Engine

Manufacturers, this Court rejected the Ninth Circuit’s

conclusion that California could escape preemption of

state vehicle emissions “standards” by banning the

purchase (but not the manufacture) of cars that did not

meet the state standards. Engine Mfrs. Ass’n v. S.

Coast Air Quality Mgmt. Dist., 541 U.S. 246, 254

(2004). The Court held that “a standard is a standard

even when not enforced through manufacturerdirected regulation.” Id. Similarly, in National Meat,

this Court rejected the Ninth Circuit’s conclusion that

California could avoid express preemption of state

manufacturing standards by framing the state law as

a sales ban. Nat’l Meat Ass’n v. Harris, 565 U.S. 452,

464 (2012). To hold otherwise “would make a mockery

of the [Act’s] preemption provision.” Id. As Judge

Nelson explained in dissenting from the decision

below, the Ninth Circuit has now committed the same

error for a third time, by “allow[ing] states and

municipalities to defeat [the] entire purpose” of the

federal Tobacco Control Act’s express preemption of

state and local product standards “with a sales ban.”

Pet.App.36a (Nelson, J. dissenting).

The question presented is:

Whether the Tobacco Control Act expressly

preempts state and local laws that prohibit the sale of

flavored tobacco products.

ii

CORPORATE DISCLOSURE STATEMENT

Petitioner R.J. Reynolds Tobacco Company is a

wholly owned subsidiary of R.J. Reynolds Tobacco

Holdings, Inc.; R.J. Reynolds Tobacco Holdings, Inc. is

a direct, wholly owned subsidiary of Reynolds

American Inc.; and Reynolds American Inc. is an

indirect, wholly owned subsidiary of British American

Tobacco, p.l.c., a publicly traded company.

Petitioner American Snuff Company is a direct,

wholly owned subsidiary of Conwood Holdings Inc.;

Conwood Holdings Inc. is a wholly owned subsidiary

of Reynolds American Inc.; and Reynolds American

Inc. is an indirect, wholly owned subsidiary of British

American Tobacco, p.l.c., a publicly traded company.

Petitioner Santa Fe Natural Tobacco Company is a

direct, wholly owned subsidiary of Reynolds American

Inc.; and Reynolds American Inc. is an indirect,

wholly owned subsidiary of British American Tobacco,

p.l.c., a publicly traded company.

iii

PARTIES TO THE PROCEEDING

Petitioners, who were the Plaintiffs-Appellants in

the Ninth Circuit, are R.J. Reynolds Tobacco

Company, American Snuff Company, and Santa Fe

Natural Tobacco Company.

Respondents, who were the Defendants-Appellees

in the Ninth Circuit, are County of Los Angeles,

County of Los Angeles Board of Supervisors, and

Hilda L. Solis, Holly Mitchell, Sheila Kuehl, Janice

Hahn, and Kathryn Barger, each in her official

capacity as a member of the Board of Supervisors.*

* Holly Mitchell replaced Mark Ridley-Thomas as a member

of the Board of Supervisors while the case was pending on appeal.

Petitioner has notified the Court pursuant to Rule 35.3 that

Holly Mitchell has been automatically substituted as a

Respondent in this case.

iv

RELATED PROCEEDINGS

R.J. Reynolds Tobacco Co., et al. v. County of Los

Angeles, et al., No. 2:20-cv-04880, U.S. District Court

for the Central District of California. Judgment

entered Aug. 7, 2020.

R.J. Reynolds Tobacco Co., et al. v. County of Los

Angeles, et al., No. 20-55930, U.S. Court of Appeals for

the Ninth Circuit. Judgment entered Mar. 18, 2022.

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

CORPORATE DISCLOSURE STATEMENT ........... ii

PARTIES TO THE PROCEEDING .......................... iii

RELATED PROCEEDINGS ..................................... iv

TABLE OF AUTHORITIES ...................................... ix

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 5

JURISDICTION ......................................................... 5

STATUTORY PROVISIONS INVOLVED ................ 5

STATEMENT OF THE CASE ................................... 6

A.

Legal Background ...................................... 6

B.

Los Angeles Bans the Sale of

Flavored Tobacco Products ........................ 8

C.

Procedural History ..................................... 9

REASONS FOR GRANTING THE WRIT ............... 11

I.

THE NINTH CIRCUIT’S HOLDING CONFLICTS

WITH THIS COURT’S PRECEDENTS AND THE

REASONING OF DECISIONS FROM OTHER

COURTS OF APPEALS .......................................... 11

A.

The Ninth Circuit’s conclusion that

the TCA’s preemption clause does

not preempt local sales prohibitions

contravenes this Court’s precedents........ 12

vi

TABLE OF CONTENTS

(continued)

Page

II.

B.

The Ninth Circuit’s conclusion that

the TCA’s savings clause saves local

sales prohibitions contravenes this

Court’s precedents .................................... 19

C.

The Ninth Circuit’s decision conflicts

with the reasoning of decisions from

other courts of appeals ............................. 26

THIS QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT.............................. 29

A.

The proper test for TCA preemption

is critically important for achieving

Congress’s objectives ................................ 29

B.

This issue is important because

hundreds of jurisdictions have

enacted similar laws, resulting in

litigation in four courts of appeals........... 30

C.

The case is also important given

the far-reaching implications of

the decision below .................................... 31

III. THIS CASE PRESENTS AN IDEAL VEHICLE .......... 34

CONCLUSION ......................................................... 35

vii

TABLE OF CONTENTS

(continued)

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Ninth Circuit

(Mar. 18, 2022) ................................................. 1a

APPENDIX B: Order of the United States

District Court for the Central District

of California Granting Defendants’

Motion to Dismiss and Denying

Plaintiffs’ Motion for Summary

Judgment as Moot (Aug. 7, 2020) .................. 49a

APPENDIX C: Order of the United States

District Court for the Central District of

California Denying Plaintiffs’ Motion for

Preliminary Injunction (July 13, 2020) ......... 55a

APPENDIX D: Order of the United States

Court of Appeals for the Ninth Circuit

Denying Rehearing (May 11, 2022) ............... 73a

APPENDIX E: Statutory Provisions

Food, Drug, and Cosmetic Act (FDCA)

FDCA § 301, 21 U.S.C. § 331 .................... 75a

FDCA § 900, 21 U.S.C. § 387 .................... 89a

FDCA § 901, 21 U.S.C. § 387a .................. 95a

FDCA § 902, 21 U.S.C. § 387b .................. 98a

FDCA § 907, 21 U.S.C. § 387g ................ 100a

FDCA § 910, 21 U.S.C. § 387j ................. 112a

FDCA § 916, 21 U.S.C. § 387p ................ 124a

viii

TABLE OF CONTENTS

(continued)

Page

Los Angeles County Code of Ordinances

L.A. Cnty. Code § 7.83.020 ..................... 126a

L.A. Cnty. Code § 11.35.020 ................... 129a

L.A. Cnty. Code § 11.35.070 ................... 135a

ix

TABLE OF AUTHORITIES

Page(s)

CASES

AT&T Co. v. Cent. Off. Tel., Inc.,

524 U.S. 214 (1998) .............................................. 21

Collins v. Yellen,

141 S. Ct. 1761 (2021) .......................................... 25

Corley v. United States,

556 U.S. 303 (2009) .............................................. 26

Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund,

138 S. Ct. 1061 (2018) .......................................... 17

Engine Mfrs. Ass’n v. S. Coast Air

Quality Mgmt. Dist.,

541 U.S. 246 (2004) ......................... 1, 2, 10, 12, 13,

14, 16, 17, 18,

19, 20, 25, 28, 30

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) .......................................... 22

Merck Sharp & Dohme Corp v. Albrecht,

138 S. Ct. 2705 (2018) .......................................... 34

Mkt. Co. v. Hoffman,

101 U.S. (11 Otto) 112 (1879) .............................. 21

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ............................................ 25

Nat’l Ass’n of Tobacco Outlets, Inc. v.

City of Providence,

731 F.3d 71 (1st Cir. 2013) ............ 3, 26, 27, 28, 31

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) ............................... 1, 2, 10, 12,

16, 17, 18, 19,

20, 25, 27, 28

R.J. Reynolds Tobacco Co. v. City of Edina,

482 F. Supp. 3d 875 (D. Minn. 2020) ............ 15, 17

Roberts v. Sea-Land Servs., Inc.,

566 U.S. 93 (2012) ................................................ 21

U.S. Smokeless Tobacco Mfg. Co. v.

City of New York,

708 F.3d 428 (2d Cir. 2013) ...................... 3, 10, 26,

27, 28, 31

Wyeth v. Levine,

555 U.S. 555 (2009) .............................................. 34

Ysleta Del Sur Pueblo v. Texas,

142 S. Ct. 1929 (2022) ..................... 2, 3, 19, 21, 22,

23, 25, 28, 35

STATUTES

7 U.S.C. § 1311 .......................................................... 29

15 U.S.C. § 1334 ........................................................ 20

15 U.S.C. § 4406 ........................................................ 20

Food, Drug, and Cosmetic Act (FDCA)

FDCA § 301, 21 U.S.C. § 331 ........................... 6, 13

FDCA § 521, 21 U.S.C. § 360k ............................. 33

FDCA § 751, 21 U.S.C. § 379r ............................. 33

xi

TABLE OF AUTHORITIES

(continued)

Page(s)

FDCA §§ 900–919, 21 U.S.C. §§ 387–387s ............ 6

FDCA § 900, 21 U.S.C. § 387 ......................... 15, 29

FDCA § 902, 21 U.S.C. § 387b ......................... 6, 13

FDCA § 907, 21 U.S.C. § 387g ............ 2, 4, 5, 6, 13,

14, 15, 31

FDCA § 916, 21 U.S.C. § 387p .......... 1, 2, 3, 5, 7, 9,

11, 12, 17, 18,

19, 20, 23, 24, 26

21 U.S.C. § 451 .......................................................... 33

21 U.S.C. § 467e ........................................................ 33

21 U.S.C. § 678 .......................................................... 33

28 U.S.C. § 1254 .......................................................... 5

42 U.S.C. § 7543 .................................................. 13, 33

46 U.S.C. § 4306 ........................................................ 33

49 U.S.C. § 30103 ...................................................... 33

Family Smoking Prevention and

Tobacco Control Act of 2009,

Pub. L. No. 111-31, 123 Stat. 1776 .................. 6, 29

Ysleta del Sur Pueblo and Alabama

and Coushatta Indian Tribes of

Texas Restoration Act, Pub. L. No.

100-89, 101 Stat. 666 (1987) ................................ 21

410 Ill. Comp. Stat 86/20 .......................................... 32

430 Ill. Comp. Stat. 40/10 ......................................... 32

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

L.A. Cnty. Code § 7.83.020 .......................................... 8

L.A. Cnty. Code § 11.35.020 ........................................ 8

L.A. Cnty. Code § 11.35.070 ........................................ 8

Mass. Gen. Laws ch. 270, § 27 .................................. 32

Me. Stat. tit. 22, § 1560-B ......................................... 32

Mich. Comp. Laws § 722.642b .................................. 32

N.Y. Gen. Bus. Law § 399-gg .................................... 32

LEGISLATIVE AND REGULATORY MATERIALS

Assemb. B. 1690,

2021–2022 Reg. Sess. (Cal. 2022) ........................ 32

21 C.F.R. § 1162.1 (proposed 2022) .......................... 13

FDA Decision Summary PM000011

(Nov. 10, 2015) ....................................................... 8

FDA News Release, FDA Grants FirstEver Modified Risk Orders to Eight

Smokeless Tobacco Products

(Oct. 22, 2019) ........................................................ 8

FDA Statement, Statement from FDA

Commissioner Scott Gottlieb, M.D., on

Proposed New Steps to Protect Youth

by Preventing Access to Flavored

Tobacco Products and Banning

Menthol in Cigarettes (Nov. 15, 2018) ................. 15

FDA, Illicit Trade in Tobacco Products

after Implementation of an FDA

Product Standard (Mar. 15, 2018) ...................... 15

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

FDA, Menthol in Cigarettes, Tobacco

Products; Request for Comments,

78 Fed. Reg. 44,484 (July 24, 2013) .................... 15

FDA, Modified Risk Granted Orders

(Mar. 11, 2022) ....................................................... 8

FDA, Regulation of Flavors in Tobacco

Products, 83 Fed. Reg. 12,294

(Mar. 21, 2018) ..................................................... 15

FDA, Tobacco Product Standard for

Menthol in Cigarettes, 87 Fed. Reg.

26,454 (May 4, 2022) ............................................ 15

940 Mass. Code Regs. 21.05 ...................................... 32

S.B. 793,

2019–2020 Reg. Sess. (Cal. 2020) .................... 4, 31

S.B. 1278,

2021–2022 Reg. Sess. (N.Y. 2021) ....................... 32

Utah Admin. Code r. R384-415-5 ............................. 32

OTHER AUTHORITIES

Black’s Law Dictionary (6th ed. 1990) ...................... 22

Webster’s Third New Int’l Dictionary

(1986) .............................................................. 15, 22

1

INTRODUCTION

Under the federal Tobacco Control Act (TCA),

states and localities have broad authority to regulate

the sale of tobacco products. They can raise the

minimum purchase age, restrict sales to particular

times and locations, and enforce licensing regimes.

But one thing they cannot do is completely prohibit

the sale of those products for failing to meet state or

local “tobacco product standards.” Nonetheless, a

sharply divided Ninth Circuit upheld Los Angeles

County’s ban on the sale of flavored tobacco products.

As Judge Nelson explained in dissent, that conclusion

conflicts with this Court’s precedent. Indeed, this

Court has “twice reversed” the Ninth Circuit for

committing the same error as below: “interpreting an

express preemption clause to allow states and

municipalities to defeat its entire purpose with a sales

ban.” Pet.App.36a–37a (Nelson, J., dissenting) (citing

first Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246 (2004); and then Nat’l Meat Ass’n

v. Harris, 565 U.S. 452 (2012)). Here, the third time is

not the charm. This Court should grant the petition

for certiorari.

First, the decision below conflicts with this Court’s

precedents and the reasoning of decisions from other

circuits.

The TCA’s preemption clause preempts “any” local

requirements that impose additional or different

“tobacco product standards.” 21 U.S.C. § 387p(a)(2)(A)

(emphasis added). The court below, however, held

that “tobacco product standards” are limited to

requirements dictating “how [a] product must be

produced.” Pet.App.25a. The court thus concluded

2

that any local law that is “merely” a “sale[s]” ban

escapes preemption. Id.

That atextual limitation directly conflicts with this

Court’s admonition that a product “standard” applies

to the final product and that localities therefore

cannot circumvent preemption by calling their laws

“sales bans.” See Engine Mfrs., 541 U.S. at 254.

Indeed, the Ninth Circuit’s interpretation “make[s] a

mockery of the ... preemption provision,” since a

locality could always defeat it by simply framing its

law as a ban on the “sale” of a product that does not

meet the locality’s preferred standard. Nat’l Meat, 565

U.S. at 464.

As in Engine Manufacturers and National Meat, the

text of the statute forecloses this nonsensical result.

The TCA makes clear that a flavor ban (such as Los

Angeles’s) is a paradigmatic “tobacco product

standard.” Indeed, a flavor ban is one of the only

tobacco product standards that Congress itself

adopted in the TCA. See 21 U.S.C. § 387g(a)(1)(A).

And because the County’s standard is broader than

the federal one, it is squarely within the Act’s

preemption clause, which prohibits “any [local]

requirement” that is “different from, or in addition to,”

federal tobacco product standards. Id. § 387p(a)(2)(A).

The Ninth Circuit’s alternative holding, that the

TCA’s savings clause allows Los Angeles to prohibit

the sale of products that do not conform to the

County’s product standard, likewise conflicts with

Engine Manufacturers and National Meat by entirely

nullifying the preemption clause. That holding also

conflicts with Ysleta Del Sur Pueblo v. Texas, 142 S.

Ct. 1929 (2022), in which this Court held that courts

3

must give effect to Congress’s decision to expressly

distinguish between “regulations” (which permit an

activity within certain bounds) and “prohibitions”

(which totally forbid the activity). Like the statute in

Ysleta, the TCA’s three preemption-related

provisions—the preservation clause, preemption

clause, and savings clause—carefully distinguish

between (i) requirements “relating to” the sale of

tobacco products and (ii) requirements “prohibiting”

their sale. See 21 U.S.C. § 387p(a)(1) (preservation

clause). The savings clause explicitly includes the

former (requirements “relating to” the sale) and omits

the latter (requirements “prohibiting” the sale). The

savings clause therefore does not save a blanket

prohibition. Id. § 387p(a)(2)(B). And again, the Ninth

Circuit’s interpretation allows localities to circumvent

the preemption clause by simply framing their laws as

prohibitions of the sale of products that don’t meet

their preferred requirements.

These reasons are why the First and Second

Circuits carefully distinguished total bans like those

adopted by the County. Those courts both upheld

restrictions on the sale of flavored tobacco products

but did so because, unlike the County’s Ordinance,

they did not impose total (or “blanket”) bans; instead,

they only regulated where those products could be

sold. Nat’l Ass’n of Tobacco Outlets, Inc. v. City of

Providence, 731 F.3d 71 (1st Cir. 2013) (“NATO”); U.S.

Smokeless Tobacco Mfg. Co. v. City of New York, 708

F.3d 428 (2d Cir. 2013). The Ninth Circuit’s decision

upholding an absolute prohibition on sales conflicts

with this reasoning.

Second, this issue is exceptionally important. The

proper test for TCA preemption has wide-ranging

4

consequences because it affects Congress’s careful

delineation of regulatory authority over a significant

and important industry.

Moreover, the question continues to recur. Four

federal courts of appeals have encountered the issue,

and hundreds of states and localities have enacted

similar provisions. In addition, a California

referendum this November could enact a statewide

ban on flavored tobacco products in one of the nation’s

largest markets. See S.B. 793, 2019–2020 Reg. Sess.

(Cal. 2020) (suspended by referendum set for

November 8, 2022).

The issue presented is also far broader than

whether states and localities can prohibit the sale of

flavored tobacco products. “Tobacco product

standards” can cover any “propert[y]” of a tobacco

product. 21 U.S.C. § 387g(a)(4)(B)(i). Thus, under the

holding below, states can regulate the amount of

nicotine in tobacco products, the type of filters in

cigarettes, the packaging of e-cigarettes, and

countless other “properties” of tobacco products. And

states are doing just that, usurping the exclusive

authority Congress gave to FDA.

Further, throughout the U.S. Code, Congress has

reserved to the federal government the exclusive

power to set uniform product standards for a variety

of industries. But the opinion below is a roadmap for

circumventing those preemption provisions. All a

state or locality has to do is frame its law as a ban on

the sale of products that do not conform to the state or

local product standard. That, in turn, would

dramatically undermine Congress’s efforts to

establish uniform standards for national industries

5

and significantly drive up the costs of doing business,

contrary to congressional intent.

Finally, this case is an ideal vehicle to resolve the

question presented. Opinions from three courts of

appeals have aired the issues presented by this case

and revealed a disagreement only this Court can

answer. A case presenting the same issue is also

pending before another court of appeals. R.J.

Reynolds Tobacco Co. v. City of Edina, No. 20-2852

(8th Cir. argued May 12, 2021). This case also cleanly

presents the core legal question, with no line-drawing

problems when it comes to what constitutes a

“prohibition,” because there is no dispute that there

are no exceptions to the County’s ban.

For these reasons, and those discussed below, this

Court should grant certiorari.

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 29 F.4th

542 and reproduced at Pet.App.1a–48a. The district

court’s opinion is not reported, but is available at 2020

WL 5405668. It is reproduced at Pet.App.49a–54a.

JURISDICTION

The Ninth Circuit issued its opinion and entered

judgment on March 18, 2022. Pet.App.1a. On May 11,

2022, the Ninth Circuit denied Petitioners’ petition for

rehearing en banc. Pet.App.73a–74a. On July 15,

2022, Justice Kagan extended the time to file this

petition until October 7, 2022. No. 22A33 (U.S.). This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions (including 21

U.S.C. §§ 387g & 387p) are at Pet.App.75a–136a.

6

STATEMENT OF THE CASE

A. Legal Background

Long before Los Angeles County considered

prohibiting flavored tobacco products, Congress

enacted a comprehensive regime distributing

authority over tobacco product regulation between

FDA and state and local governments. See Family

Smoking Prevention and Tobacco Control Act of 2009,

Pub. L. No. 111-31, 123 Stat. 1776 (TCA). Among

other things, the Act amended the federal Food, Drug,

and Cosmetic Act to grant FDA primary authority to

regulate tobacco products. See 21 U.S.C. §§ 387–387s.

The TCA addresses flavors in tobacco products in a

section entitled “Tobacco product standards.” Id.

§ 387g. In that section, Congress created a “[t]obacco

product standard[]” prohibiting characterizing flavors

in cigarettes other than tobacco or menthol. Id.

§ 387g(a)(1)(A) (establishing this tobacco product

standard); id. § 387g(a)(2) (calling it a “tobacco

product standard[]”); id. § 387g(a)(3)(A) (same).

Congress, moreover, enforced that standard through

a sales ban, providing that any cigarettes containing

impermissible

characterizing

flavors

are

“adulterated” and cannot be sold. Id. §§ 387b(5),

331(a), (c). Congress left it to FDA to decide, subject to

various requirements, whether to extend that

prohibition to other tobacco products or flavors. E.g.,

id. § 387g(a).

Given the primary role Congress assigned to FDA,

Congress also addressed the relationship between

federal authority and state and local authority to

regulate tobacco products. Congress did so in three

interrelated provisions:

7

The preservation clause generally preserves “the

authority of ” states, localities, the Armed Forces,

federal agencies, and Indian tribes to promulgate

measures that are “in addition to, or more stringent

than, requirements” under the TCA, including

“measure[s] relating to or prohibiting the sale … of

tobacco products by individuals of any age.” Id.

§ 387p(a)(1) (emphasis added). While the preservation

of those entities’ authority is broad, when it comes to

state and local governments, it has an express

exception: If a state or local law falls within the TCA’s

preemption clause, that law is not protected by the

preservation clause. Id. (stating that the preservation

clause applies “[e]xcept as provided in [the

preemption clause]”).

The preemption clause then prohibits states and

localities from “establish[ing] … any requirement”

that “is different from, or in addition to,” federal

requirements “relating to tobacco product standards,

premarket review, adulteration, misbranding,

labeling, registration, good manufacturing standards,

or modified risk tobacco products.” Id. § 387p(a)(2)(A)

(emphases added).

The savings clause then provides an exception to

preemption. It saves state and local “requirements

relating to the sale … of, tobacco products by

individuals of any age.” Id. § 387p(a)(2)(B) (emphasis

added). But unlike the preservation clause, the

savings clause does not reference—and so does not

save—local power to enact “requirements prohibiting

the sale” of those products. Compare id. (savings

clause), with id. § 387p(a)(1) (preservation clause).

8

B. Los Angeles Bans the Sale of Flavored

Tobacco Products

There has been a surge in states and localities

restricting, and sometimes completely banning, the

sale of flavored tobacco products. See Pet.App.14a–

15a (identifying more than 300 restrictions). Los

Angeles County joined that trend in 2019. That year,

the County’s Board of Supervisors approved an

Ordinance imposing a total ban on retail sales of

flavored tobacco products. Id.

The Ordinance makes it illegal to “sell or offer for

sale, … any flavored tobacco product.” L.A. Cnty. Code

§ 11.35.070(E). A “[t]obacco product” includes “[a]ny

product containing, made, or derived from tobacco or

nicotine.” Id. § 7.83.020(G). A “Flavored Tobacco

Product” is “any tobacco product” that “imparts a

characterizing flavor” other than tobacco. Id.

§ 11.35.020(J).

Los Angeles thus bans retailers from selling any

type of flavored tobacco product, including menthol

cigarettes. In fact, the Ordinance bans products even

if FDA has found them to be “appropriate for the

protection of the public health,”1 and even if FDA has

authorized manufacturers to market them as

presenting lower health risks than cigarettes.2

1 E.g., FDA Decision Summary PM000011 (Nov. 10, 2015)

(authorizing a mint snus product), https://tinyurl.com/mw56k4ps.

2 E.g., FDA News Release, FDA Grants First-Ever Modified

Risk Orders to Eight Smokeless Tobacco Products (Oct. 22, 2019),

https://tinyurl.com/y6ruvbdz (authorizing marketing of flavored

snus products as having “a lower risk [than cigarettes] of ”

certain diseases); see also FDA, Modified Risk Granted Orders

(Mar. 11, 2022), https://tinyurl.com/y2bvbzxv.

9

C. Procedural History

R.J. Reynolds Tobacco Company and its affiliates

manufacture various tobacco products for sale in the

United States, including menthol-flavored cigarettes.

They sued the County, arguing that the TCA

preempted the Ordinance. As Reynolds argued, a ban

on flavored tobacco products is a paradigmatic

“tobacco product standard.” And because the County’s

ban is broader than the federal one, it is “different

from” and “in addition to” the federal standard under

the TCA’s preemption clause.

A divided panel of the Ninth Circuit upheld the

Ordinance. The majority concluded that “tobacco

product standards” are limited to regulations of how a

“product must be produced”—a limitation found

nowhere in the statutory text. Pet.App.25a. And

because the Ordinance “merely” bans the sale of

flavored tobacco products, the majority insisted that it

is not a preempted tobacco product standard. Id. The

court also reasoned that not limiting “tobacco product

standards” to production regulations “would render

much of the preceding preservation clause a nullity.”

Pet.App.21a.

The majority alternatively held that the TCA’s

savings clause saved the Ordinance. Pet.App.29a. The

court held, “A ban on the sale of flavored tobacco

products is, simply put, a requirement that tobacco

retailers or licensees throughout the County not sell

flavored tobacco products. It therefore fits within the

savings clause as a ‘requirement[] relating to the sale

... of[] tobacco products [to] individuals of any age.’”

Pet.App.29a (quoting 21 U.S.C. § 387p(a)(2)(B)). The

majority refused to give effect to the statutory

10

distinction between requirements “relating to” sales,

on the one hand, and those “prohibiting sales,” on the

other. Instead, it held that the savings clause’s

reference to the former included the latter,

notwithstanding the statute’s clear distinction

between the two.

Judge Nelson dissented. He explained that Los

Angeles’s ban falls within the preemption clause and

is neither preserved nor saved. He began with this

Court’s decisions in Engine Manufacturers, 541 U.S.

246, and National Meat, 565 U.S. 452, which “[t]wice

… reversed [the Ninth Circuit] for interpreting an

express preemption clause to allow states and

municipalities to defeat its entire purpose with a sales

ban.” Pet.App.36a (Nelson, J., dissenting). Judge

Nelson explained that those cases establish that

“states can’t get around” preemption “by disguising

[their] regulation as a sales ban.” Pet.App.38a. Those

cases thus require “hold[ing] that Los Angeles’s ban is

covered by the preemption clause.” Pet.App.39a.

Judge Nelson also noted that the majority’s reasoning

was inconsistent with the Second Circuit’s reasoning

in U.S. Smokeless, because that court “upheld a more

limited regulation” and “was careful to avoid implying

that a complete sales ban would be permissible.”

Pet.App.41a.

Judge Nelson further explained that the

“preservation clause does not apply to the preemption

clause at all” because it is qualified by the words

“‘[e]xcept as provided in’ … the preemption clause.”

Pet.App.42a. Instead, the preservation clause clarifies

that no other section of the Act has express

preemptive effect and that federal agencies and

Indian tribes are unaffected by the preemption clause.

11

Pet.App.42a–43a. Finally, Judge Nelson concluded

that the savings clause does not save the County’s ban

because

the

clause

saves

only

age-based

requirements. Pet.App.43a–46a. “Any other reading

makes the clause ‘[to] individuals of any age’

superfluous.” Pet.App.44a.

Petitioners sought rehearing en banc. Although the

court denied the en banc petition, Judge Nelson voted

to grant it. Pet.App.73a–74a.

REASONS FOR GRANTING THE WRIT

I.

THE NINTH CIRCUIT’S HOLDING CONFLICTS WITH

THIS COURT’S PRECEDENTS AND THE REASONING

OF DECISIONS FROM OTHER COURTS OF APPEALS

Under the Tobacco Control Act, states and localities

have broad authority to regulate how products are

sold. They can raise the minimum purchase age,

restrict sales to particular times and locations, and

enforce licensing regimes. But one thing they cannot

do is completely prohibit the sale of certain tobacco

products for failing to meet the state’s or locality’s

preferred tobacco product standards. That is because

the TCA’s preemption clause specifically denies states

and localities the power to enact “any requirement

which is different from, or in addition to,” federal

“tobacco product standards.” 21 U.S.C. § 387p(a)(2)(A)

(emphasis added). Despite that clause, however, the

Ninth Circuit held that a state or locality can evade

preemption by simply framing its law as a ban on the

sale of products that do not meet the state or local

standard.

That decision directly conflicts with this Court’s

precedents. Indeed, as Judge Nelson’s dissent in this

case noted, “[i]n the last two decades, the Supreme

12

Court has twice reversed [the Ninth Circuit] for

failing”—based on the same rationale—“to find

California

regulations

expressly

preempted.”

Pet.App.37a (Nelson, J., dissenting) (citing first

Engine Mfrs., 541 U.S. 246; and then Nat’l Meat, 565

U.S. 452). The Ninth Circuit’s opinion is also

inconsistent with the reasoning of two other courts of

appeals. This Court should therefore grant certiorari.

A. The Ninth Circuit’s conclusion that the

TCA’s preemption clause does not

preempt

local

sales

prohibitions

contravenes this Court’s precedents

1. The TCA’s preemption clause preempts “any”

local “requirement which is different from, or in

addition to,” federal “tobacco product standards.” 21

U.S.C.

§ 387p(a)(2)(A)

(emphasis

added).

Nonetheless, the Ninth Circuit held that as long as a

local law enforcing such a requirement is framed as a

sales ban, the local law is not preempted. The court

explained that Los Angeles’s Ordinance was “merely

banning the sale of a certain type of tobacco product,

not dictating how that product must be produced.”

Pet.App.25a (emphasis added). That, in the Ninth

Circuit’s view, was dispositive, because “tobacco

product standards” do not include sales regulations or

prohibitions.

The Ninth Circuit’s holding conflicts with this

Court’s repeated admonition that states and localities

cannot evade preemption by simply enforcing their

standards at the point of sale. In Engine

Manufacturers, this Court rejected the Ninth Circuit’s

decision to impose such an atextual limitation on a

preemption clause. There, California prohibited the

13

purchase of cars that did not meet local emission

standards. 541 U.S. at 248–49. The Clean Air Act,

however, expressly preempted states from adopting

“standard[s] relating to the control of emissions from

new motor vehicles.” 42 U.S.C. § 7543(a) (emphasis

added).

Like here, California argued that a “standard” was

only “a ‘production mandate’” applicable to

manufacturers; thus, the purchase requirement was

not preempted. Engine Mfrs., 541 U.S. at 254–55. But

this Court specifically rejected that attempt to

“engraft onto th[e] meaning of ‘standard’ a limiting

component” found nowhere in the statutory text. Id.

at 253. Instead, looking to the dictionary definition of

“standard,” the Court concluded that a “standard”

applies to the final product, not simply how it is made.

Id. Standards “target” the product itself, which means

preempted “standard-enforcement efforts … can be

directed to manufacturers or purchasers.” Id. In other

words, “a standard is a standard even when not

enforced through manufacturer-directed regulation.”

Id. at 254.

The same is true here. A tobacco product standard

applies to the final product, not simply to how the

product is made. See 21 U.S.C. § 387g(a)(4)(B)(i). A

sales ban and a manufacturing ban are just different

ways of enforcing a standard. In either case, what is

being enforced is a standard (no flavors in tobacco

products). Indeed, like the Ordinance here, federal

tobacco product standards are also enforced at the

point of sale. Id. §§ 331(a), (c), 387b(5); see also 21

C.F.R. § 1162.1(b) (proposed 2022) (proposing, as part

of a “[p]roduct [s]tandard for [m]enthol in

[c]igarettes,” to ban the sale of menthol cigarettes).

14

Such enforcement mechanisms, however, do not

change the fact that the sales prohibitions are

enforcing product standards. The Ninth Circuit’s

conclusion that tobacco product standards in the TCA

are limited to production regulations is thus

irreconcilable with Engine Manufacturers.

It is also irreconcilable with the TCA’s plain text.

The TCA specifically says that tobacco product

standards can govern a tobacco product’s “properties,”

“constituents,”

and

“additives,”

21

U.S.C.

§ 387g(a)(4)(B)(i). Those words likewise refer to the

final product—not merely the production of the

product. In other words, a tobacco product standard

governs what may be produced, not just how it may be

produced.

Indeed, the TCA makes it patently clear that the

type of law at issue here—a ban on flavored tobacco

products—is a paradigmatic “tobacco product

standard.” The section titled “Tobacco product

standards” contains two tobacco product standards,

the very first of which is a ban on flavored cigarettes

(other than tobacco and menthol). Id. § 387g. It bans

cigarettes that “contain, as a constituent … or

additive, an artificial or natural flavor (other than

tobacco or menthol) … that is a characterizing flavor

of the tobacco product or tobacco smoke.” Id.

§ 387g(a)(1) (emphasis added). The next two

provisions also call that prohibition a “tobacco product

standard[].” Id. § 387g(a)(2); id. § 387g(a)(3)(A).

The statute also expressly describes “tobacco

product standards” as encompassing “provisions

respecting the construction, components, ingredients,

additives, constituents, … and properties of the

15

tobacco product,” id. § 387g(a)(4)(B)(i) (emphasis

added)—which plainly covers the regulation of flavors.

See, e.g., R.J. Reynolds Tobacco Co. v. City of Edina,

482 F. Supp. 3d 875, 879 (D. Minn. 2020) (“[T]here can

be no dispute that a provision respecting the flavor of

a tobacco product is a provision respecting a

‘propert[y]’ of that product.”), appeal pending, No. 202852 (8th Cir. argued May 12, 2021); 21 U.S.C. § 387(1)

(defining “additive[s]” to include “substances intended

for use as a flavoring”); Webster’s Third New Int’l

Dictionary 486 (1986) (defining “constituent” as “an

essential part” of the product).

And lest there be any doubt, FDA too has repeatedly

concluded that restrictions on flavors—including

sales bans—are tobacco product standards. See 87 Fed.

Reg. 26,454, 26,456 (May 4, 2022) (invoking its

“authorities to revise or issue tobacco product

standards” to propose a rule, titled “Tobacco Product

Standard for Menthol in Cigarettes,” which would

prohibit menthol-flavored cigarettes); FDA, Illicit

Trade in Tobacco Products after Implementation of an

FDA Product Standard 4 (Mar. 15, 2018) (explaining

FDA was “considering establishing a product

standard prohibiting the manufacture, sale, and

distribution of tobacco products with certain

characterizing flavors” (emphasis added)).3

3 Further examples abound. See FDA, Menthol in Cigarettes,

Tobacco Products; Request for Comments, 78 Fed. Reg. 44,484,

44,485 (July 24, 2013); FDA, Regulation of Flavors in Tobacco

Products, 83 Fed. Reg. 12,294, 12,299 (Mar. 21, 2018); FDA

Statement, Statement from FDA Commissioner Scott Gottlieb,

M.D., on Proposed New Steps to Protect Youth by Preventing

Access to Flavored Tobacco Products and Banning Menthol in

Cigarettes (Nov. 15, 2018), https://tinyurl.com/27z227hb.

16

Thus, the Ninth Circuit’s artificial limitation of

“tobacco product standards” not only conflicts with

Engine Manufacturers but with the text of the TCA

itself.

2. Even if tobacco product standards were somehow

limited to production mandates (they are not), the

decision below conflicts with National Meat, 565 U.S.

452. There, California banned slaughterhouses from

selling meat from animals that could not walk.

Manufacturers argued that the Federal Meat

Inspection Act (FMIA) preempted California’s law.

That Act prohibited states from adopting

“[r]equirements … with respect to premises, facilities

and operations of any establishment … which are in

addition to, or different than those made under [the

FMIA].” Id. at 458. Unlike here, this preemption

provision was textually limited to production

mandates. And like the decision below, California

argued that its rule was not preempted because it

regulated sales, not manufacturing. Id. at 463.

This Court, however, unanimously rejected the

argument. “[I]f the sales ban were to avoid the FMIA’s

preemption clause, then any State could impose any

regulation on slaughterhouses just by framing it as a

ban on the sale of meat produced in whatever way the

State disapproved. That would make a mockery of the

FMIA’s preemption provision.” Id. at 464.

So too here. “[E]ven if it were necessary to show a

direct ban on [production], [Los Angeles’s] Ordinance

is in effect such a ban. There is little difference

between the government telling a manufacturer that

it may not add an ingredient that imparts a flavor to

a tobacco product and the government telling a

17

manufacturer that it may not sell a tobacco product if

it has added an ingredient that imparts a flavor.”

Edina, 482 F. Supp. 3d at 879 (citing Nat’l Meat, 565

U.S. 452). In that way, the County’s ban does regulate

how tobacco products must be produced. Id.

3. The Ninth Circuit’s attempt to distinguish the

TCA from the statutes in Engine Manufacturers and

National Meat is unavailing. According to the decision

below, the TCA’s “preservation clause” makes all the

difference. Pet.App.21a. Because that clause

preserves local authority to enact laws “relating to or

prohibiting the sale” of tobacco products, 21 U.S.C.

§ 387p(a)(1), the court concluded that the preemption

clause must be limited to regulations “dictating how

th[e] product must be produced.” Pet.App.25a.

Otherwise, the preservation clause would be a

“nullity.” Pet.App.21a.

That gets things exactly backwards. “By its terms,

the preservation clause does not apply to the

preemption clause at all.” Pet.App.42a (Nelson, J.,

dissenting). Rather, the preservation clause is

explicitly subject to the preemption clause. It says:

“Except as provided in [the preemption clause] ….”

“Thousands of statutory provisions use the phrase

‘except as provided in …’ followed by a cross-reference

in order to indicate that one rule should prevail over

another in any circumstance in which the two

conflict.” Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund,

138 S. Ct. 1061, 1070 (2018). That is precisely what

Congress did here. And that dispenses with the Ninth

Circuit’s suggestion that “[i]t is unlikely that

Congress would purport to preserve something for

state and local authority, only to preempt it in the

very next provision.” Pet.App.24a. The preservation

18

clause thus in no way distinguishes the TCA from the

statutes in Engine Manufacturers or National Meat.

Moreover, Petitioners’ interpretation does not

nullify the preservation clause, contrary to the Ninth

Circuit’s suggestion. That clause serves other critical

functions, which do not “affect the preemption clause.”

Pet.App.42a (Nelson, J., dissenting).

First, the preservation clause also applies to federal

agencies, the military, and Indian Tribes. Those

entities are not subject to the preemption clause at all,

21 U.S.C. § 387p(a)(1); the preservation clause

clarifies that they are free to set their own tobacco

product standards. See Pet.App.42a (Nelson, J.,

dissenting).

Second, the preservation clause clarifies “that other

sections of the TCA do not have any preemptive

effect.” Pet.App.42a. The preservation clause says

that only those categories listed in the preemption

clause have express preemptive effect. The

preservation clause also rebuts any suggestion that

Congress through the TCA occupied the field of

tobacco regulation. Thus, under the preservation

clause, states and localities retain broad authority

over how tobacco products are sold, so long as their

laws do not amount to product standards (or other

preempted categories of regulation). Laws raising the

minimum purchase age, restricting sales to particular

times and locations, and enforcing licensing regimes

are all preserved.

***

In sum, the opinion below directly conflicts with

Engine Manufacturer’s admonition that a “standard”

applies to the final product and that localities

19

therefore cannot circumvent preemption by calling

their laws “sales bans.” See 541 U.S. at 254. And it

conflicts with National Meat’s reaffirmation that

allowing localities to avoid preemption simply by

framing their product standards as “banning the sale

of nonconforming products” would “make a mockery of

the … preemption provision.” See 565 U.S. at 464.

B. The Ninth Circuit’s conclusion that the

TCA’s savings clause saves local sales

prohibitions contravenes this Court’s

precedents

The Ninth Circuit alternatively held that the TCA’s

savings clause saves state and local sales prohibitions.

But the savings clause saves “requirements relating

to sales,” not “requirements prohibiting sales.” See 21

U.S.C. § 387p(a)(2)(A). This interpretation of the

savings clause renders the preemption clause a

complete nullity, once again conflicting with Engine

Manufacturers and National Meat. And given

Congress’s careful distinction between requirements

“relating to the sale” and requirements “prohibiting

the sale,” language that this Court has said must be

given effect, the Ninth Circuit’s interpretation also

conflicts with Ysleta.

1. The Ninth Circuit held that even if a sales

prohibition fell within the TCA’s preemption clause, it

would nonetheless be saved by the TCA’s savings

clause, which saves requirements “relating to the

sale” of tobacco products. Pet.App.29a. That

interpretation of the savings clause, however,

“make[s] a mockery of the [TCA’s] preemption

provision” because there is nothing for the preemption

clause to do. See Nat’l Meat, 565 U.S. at 464. Under

20

the decision below, a locality is free to set its own

tobacco product standard, as long as it frames its law

as a ban on the sale of products that do not meet that

standard. As this Court explained in Engine

Manufacturers, “if one State or political subdivision

may enact such rules, then so may any other; and the

end result would undo Congress’s carefully calibrated

regulatory scheme.” 541 U.S. at 255.

It gets worse. Through the TCA, Congress intended

to preempt not just local tobacco product standards

but also local requirements for labeling and good

manufacturing standards (among others). 21 U.S.C.

§ 387p(a)(2)(A). Thus, the Ninth Circuit’s opinion

means that a locality can easily circumvent the

preemption clause and establish its own good

manufacturing standards, such as a requirement that

manufacturers use certain equipment. Similarly, the

decision means that a locality can establish its own

labeling standards, such as requiring cigars and ecigarettes to carry the locality’s mandated warning

label, even if FDA has mandated a different one.4 All

the locality has to do is ban the sale of products that

do not meet a locality’s good manufacturing or

labeling

requirements.

The

Ninth

Circuit’s

interpretation of the savings clause thus conflicts with

Engine Manufacturers and National Meat, both of

which held that states and localities cannot use sales

bans to circumvent a preemption clause.

4 While other laws would preempt state labeling of cigarettes

and smokeless tobacco, 15 U.S.C. §§ 1334 & 4406(b), only the

TCA expressly preempts labeling of other tobacco products.

21

2. The Ninth Circuit’s decision also directly conflicts

with this Court’s recent decision in Ysleta, 142 S. Ct.

at 1938.

a. As this Court has long and repeatedly instructed,

statutory provisions must fit “into an harmonious

whole.” E.g., Roberts v. Sea-Land Servs., Inc., 566 U.S.

93, 100 (2012); Mkt. Co. v. Hoffman, 101 U.S. (11 Otto)

112, 116 (1879) (“every part of a statute must be

construed in connection with the whole, so as to make

all the parts harmonize, if possible, and give meaning

to each”). And one clause cannot be construed as being

“inconsistent with the [other] provisions of the act.”

AT&T Co. v. Cent. Off. Tel., Inc., 524 U.S. 214, 227–

28 (1998).

In Ysleta, this Court specifically applied those

interpretive rules to conclude that the words

“regulation[s]” and “prohibition[s]” must be given

independent meaning, especially when used in the

same statute. Ysleta, 142 S. Ct. at 1938. Ysleta

interpreted the Restoration Act’s bar on Indian Tribes’

offering “gaming activities which are prohibited by

the laws of … Texas.” Id. at 1935 (quoting Ysleta del

Sur Pueblo and Alabama and Coushatta Indian

Tribes of Texas Restoration Act, Pub. L. No. 100-89,

§ 107(a), 101 Stat. 666, 668 (1987)). Texas argued that

this provision subjected Tribes to all Texas gaming

regulations (not just to outright prohibitions). This

Court rejected that reading, relying on a separate

provision of the Act that says the Act is not a “grant of

civil or criminal regulatory jurisdiction to … Texas.”

Id. at 1935–36 (quoting Pub. L. No. 100-89, § 107(b),

101 Stat. at 669).

22

“Perhaps the most striking feature about [the Act’s]

language,” the Court reasoned, “is its dichotomy

between prohibition and regulation.” Id. at 1938. “[T]o

prohibit something means to ‘forbid,’ ‘prevent,’ or

‘effectively stop’ it ….” Id. (quoting Webster’s Third,

supra, at 1813). By contrast, “to regulate something is

usually understood to mean to ‘fix the time, amount,

degree, or rate’ of an activity ‘according to rule[s].’” Id.

(quoting Webster’s Third, supra, at 1913).

“Frequently, then, the two words are ‘not

synonymous.’” Id. (quoting Black’s Law Dictionary

1212 (6th ed. 1990)). This Court further highlighted

its “usual presumption that ‘differences in language

like this convey differences in meaning.’” Id. at 1939

(quoting Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718, 1723 (2017)). And Ysleta emphasized

that a construction that renders “regulations

simultaneously both (permissible) prohibitions and

(impermissible) regulations” had to be rejected. Id.

Accordingly, laws that “merely regulate[]” gaming do

not apply to the Tribe. Id. at 1937.

Moreover, the Court pointed out, if the words were

not given different meanings, then the Restoration

Act’s provision stating that the act was not a “grant of

civil or criminal regulatory jurisdiction” would “be left

with no work to perform.” Id. at 1938–39. That result

would defy “yet another of our longstanding canons of

statutory construction—this one, the rule that we

must normally seek to construe Congress’s work ‘so

that effect is given to all provisions, so that no part

will be inoperative or superfluous, void or

insignificant.’” Id. at 1939.

The Court also rejected a supposed line-drawing

problem when it came to regulations and prohibitions.

23

Texas argued that distinguishing between the two

would be “unworkable.” Id. at 1943. According to

Texas, courts “might be called on to decide whether

‘electronic bingo’ qualifies as ‘bingo’ and thus a

gaming activity merely regulated by Texas, or

whether it constitutes an entirely different sort of

gaming activity absolutely banned by Texas and thus

forbidden as a matter of federal law.” Id. That could

lead to further litigation. The Court “appreciate[d]

these concerns” but they did “not persuade.” Id. “Most

fundamentally, they are irrelevant. It is not our place

to question whether Congress adopted the wisest or

most workable policy, only to discern and apply the

policy it did adopt. If Texas thinks good governance

requires a different set of rules, its appeals are better

directed to those who make the laws than those

charged with following them.” Id. at 1943–44.

b. The Ninth Circuit’s interpretation of the TCA—

that it saves sales prohibitions—conflicts with Ysleta.

Foremost,

the

savings

clause

only

saves

“requirements relating to the sale” of tobacco

products. 21 U.S.C. § 387p(a)(2)(B). Under Ysleta,

that cannot include prohibitions, since the TCA’s text

explicitly distinguishes between requirements

“relating to the sale” and requirements “prohibiting

the sale.”

The TCA’s preservation clause provides, “Except as

provided in [the preemption clause], nothing [in the

TCA] shall be construed to limit the authority of ”

state and local governments, federal agencies, the

military, and Indian tribes, “to enact … any law …

with respect to tobacco products that is in addition to,

or more stringent than, requirements established

under [the TCA], including a law … relating to or

24

prohibiting the sale, distribution, [or] possession” of

“tobacco products by individuals of any age.” Id.

§ 387p(a)(1) (emphasis added). It thus gives state and

local governments, federal agencies, the military, and

Indian tribes broad authority, including the authority

to adopt requirements “relating to or prohibiting” the

sale of tobacco products. But as its text also makes

clear, it is subject to the exception set forth in the

preemption clause.

The preemption clause, then, takes away from state

and local governments (but not others) part of the

broad power conferred by the preservation clause.

Under the preemption clause, state and local

governments cannot enact “any requirement which is

different from, or in addition to,” federal tobacco

product standards. Id. § 387p(a)(2)(A) (emphasis

added). The capacious phrase “any requirement”

sweeps in both requirements “relating to” and

“prohibiting” the sale of tobacco products—both are

preempted if they are “different from, or in addition

to,” federal tobacco product standards.

Finally, the savings clause restores only part of

what the preemption clause takes away. It says the

preemption clause “does not apply to requirements

relating to the sale” of tobacco products. Id.

§ 387p(a)(2)(B) (emphasis added). But absent is any

reference to the power to impose requirements

“prohibiting the sale” of tobacco products—meaning

that state and local governments still lack that power.

Congress’s decision to use “relating to or

prohibiting” sales in the preservation clause, but to

omit “or prohibiting” from the nearly identical phrase

in the savings clause, shows that Congress

25

deliberately excluded sales prohibitions from the class

of non-preempted laws in the savings clause.

Congress generally “acts intentionally and purposely”

when it “includes particular language in one section of

a statute but omits it in another.” Collins v. Yellen,

141 S. Ct. 1761, 1782 (2021). And “[c]ourts are

required to give effect to Congress’ express inclusions

and exclusions.” Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617, 631 (2018).

The only way to reconcile the TCA’s preemptionrelated clauses is to recognize that while local

governments have broad authority to regulate the

sales process, one thing they may not do is absolutely

prohibit the sale of products that fail to meet their

preferred product standards. The Ninth Circuit’s

contrary reading renders the TCA “a jumble.” Ysleta,

142 S. Ct. at 1939. And it leaves the preemption clause

with “no work to perform, its terms dead letters all.”

Id.; see also supra Part I.B.1 (explaining that this

interpretation

also

conflicts

with

Engine

Manufacturers and National Meat).

The Ninth Circuit’s contention that the distinction

between regulation and prohibition would “create a

hopelessly inadministrable standard,” Pet.App.31a,

also conflicts with Ysleta, which rejected that kind of

“appeal to public policy.” 142 S. Ct. at 1943–44. As

Judge Nelson explained in dissent, “[t]hat the line

might be hard to draw in some hypothetical future

case is no reason to throw the baby out with the

bathwater. We must avoid reading statutes in absurd

ways, … but no canon of statutory interpretation

requires us to avoid any reading of a statute under

which one can craft an absurd argument.”

Pet.App.46a (Nelson, J., dissenting). And in all

26

events, this case presents no line-drawing issue at all,

because there is no dispute that there are no

exceptions to the County’s total ban on the sale of

flavored tobacco products. See infra Part III.

3. Finally, as Judge Nelson concluded, the savings

clause also does not apply for a second, independent

reason. “The savings clause only saves for states the

authority to enact age requirements.” Pet.App.44a.

This much is clear from the clause’s limitation to

“requirements relating to the sale … of[] tobacco

products [to] individuals of any age.” 21 U.S.C.

§ 387p(a)(2)(B) (emphasis added). “Any age” must

mean “individuals of a particular age”; that is, only

state and local requirements that are age-based are

saved. The Ninth Circuit, however, interpreted “any

age” to mean “all ages,” thus rendering the phrase “by

individuals of any age” wholly superfluous.

Pet.App.34a. That conflicts with numerous cases

instructing that statutory provisions should not be

rendered meaningless. E.g., Corley v. United States,

556 U.S. 303, 314 (2009).

C. The Ninth Circuit’s decision conflicts

with the reasoning of decisions from

other courts of appeals

The decision below also conflicts with the reasoning

of decisions of the First and Second Circuits. See U.S.

Smokeless, 708 F.3d 428; NATO, 731 F.3d 71; see also

Pet.App.45a (Nelson, J. dissenting) (noting that the

decision below conflicts with the reasoning of U.S.

Smokeless). U.S. Smokeless and NATO upheld local

restrictions on flavored tobacco products, but neither

court upheld a blanket prohibition like the one here.

27

In U.S. Smokeless, the Second Circuit considered a

New York City ordinance that limited the sale of

flavored tobacco products to tobacco bars. 708 F.3d at

431. Tobacco manufacturers sued the city, arguing

that the TCA expressly preempted the ordinance. The

Second Circuit, however, held that the TCA did not

preempt the ordinance because it was “[a] local sales

regulation that does not clearly infringe on the FDA’s

authority to determine what chemicals and processes

may be used in making tobacco products.” Id. at 434

(emphasis added). The court emphasized that this was

so because the ordinance still “allows [flavored tobacco

products] to be sold within New York City, although

to a limited extent.” Id. at 436. By contrast, the court

explained, “any purported sales ban that in fact

‘functions as a command’ to tobacco manufacturers ‘to

structure their operations’ in accordance with locally

prescribed standards would not escape preemption

simply because the City ‘fram[ed] it as a ban on the

sale of [tobacco] produced in whatever way [it]

disapproved.’” Id. at 434 (quoting Nat’l Meat, 565 U.S.

at 972–73). In other words, as Judge Nelson opined

below, although the Second Circuit “did adopt a

version of the [Ninth Circuit’s] sales vs.

manufacturing distinction, … it was careful to avoid

implying that a complete sales ban would be

permissible.” Pet.App.41a (Nelson, J., dissenting).

Likewise, the law at issue in the First Circuit

regulated the sale of flavored tobacco products—it did

not prohibit sales completely. NATO, 731 F.3d at 74.

In that case, a local ordinance made it “unlawful for

any person to sell or offer for sale any flavored tobacco

product to a consumer, except in a smoking bar.” Id.

The First Circuit held that the ordinance was not

28

preempted for the same reason the Second Circuit

upheld New York City’s ordinance: it “is not a blanket

prohibition because it allows the sale of flavored

tobacco products in smoking bars. Rather, it is a

regulation ‘relating to’ sales….” Id. at 82 (emphasis

added). The First Circuit concluded that this

“distinguishe[d]” Providence’s law from the law at

issue in National Meat. Id.

By contrast, the decision below upheld a blanket

prohibition. Los Angeles’s Ordinance is different in

kind from those upheld in U.S. Smokeless and NATO.

Los Angeles’s Ordinance has no exceptions.

Consumers cannot purchase flavored tobacco products

anywhere in the County—not in tobacco bars (as in

U.S. Smokeless), not in smoking bars (as in NATO).

Thus, the Ninth Circuit’s decision upholding a total

prohibition conflicts with the rationale of these

decisions from the First and Second Circuits, under

which such a total prohibition would be preempted.

***

In the end, because the preemption clause covers a

total ban on flavored tobacco products and the savings

clause does not save such a blanket prohibition, the

Ninth’s Circuit’s approval of Los Angeles County’s

Ordinance is contrary to this Court’s decisions in

Engine Manufacturers, National Meat, and Ysleta and

is inconsistent with the reasoning of decisions from

the First and Second Circuits.

29

II. THIS QUESTION PRESENTED IS EXCEPTIONALLY

IMPORTANT

A. The proper test for TCA preemption is

critically important for achieving

Congress’s objectives

The question presented is exceptionally important

because it has far-reaching consequences for a

significant industry in the national economy. Indeed,

Congress has said, “The sale … of tobacco products …

ha[s] a substantial effect on the Nation’s economy.”

TCA § 2(10), 123 Stat. at 1777, codified at 21 U.S.C.

§ 387 note; see also 7 U.S.C. § 1311, repealed by Pub.

L. No. 108-357 (Oct. 22, 2004) (“The marketing of

tobacco constitutes one of the greatest basic industries

of the United States with ramifying activities which

directly affect interstate and foreign commerce at

every point, and stable conditions therein are

necessary to the general welfare.”).

In recognition of the tobacco industry’s large and

significant role in the national economy and in order

to protect against nonuniform and confusing tobacco

regulations, Congress enacted the TCA, which

includes a comprehensive scheme to regulate tobacco

products nationwide. See 21 U.S.C. § 387 note (TCA

findings). In taking that comprehensive approach to

tobacco regulation, Congress granted FDA broad

authority to regulate tobacco products. See id. (“It is

in the public interest for Congress to enact legislation

that provides the Food and Drug Administration with

the authority to regulate tobacco products and the

advertising and promotion of such products. The

benefits to the American people from enacting such

30

legislation would be significant in human and

economic terms.”).

But Congress also recognized that states and

localities should continue to play a role in regulating

some aspects of tobacco products. Thus, Congress

guaranteed that states and localities could continue

their traditional role of regulating how tobacco

products are sold—for example, through licensing

regimes, restrictions on where and when products can

be sold, and setting a minimum age for purchase. And

to protect the federal government’s exclusive

authority to regulate certain aspects of tobacco

products, including standards that apply to those

products, Congress denied states and localities the

power to enforce their own standards through sales

bans.

The Ninth Circuit’s opinion upends that statutory

scheme and imperils Congress’s careful design. Under

the Ninth Circuit’s rule, every state and locality may

enact its own ban on flavored tobacco products; all

they have to do is ban their sale. See Engine Mfrs., 541

U.S. at 255 (“if one State or political subdivision may

enact such rules, then so may any other”). That is not

what Congress intended. And the regulatory chaos

augured by the Ninth Circuit’s opinion threatens the

stable conditions that are necessary for the tobacco

industry.

B. This issue is important because

hundreds of jurisdictions have enacted

similar laws, resulting in litigation in

four courts of appeals

The Ninth Circuit is not the first appeals court to

decide this issue. The issue has reached four federal

31

courts of appeals, City of Edina, No. 20-2852 (8th Cir.

argued May 12, 2021); Pet.App.1a; NATO, 731 F.3d

71; U.S. Smokeless Tobacco Mfg. Co., 708 F.3d 428.

And it is sure to continue, since, as the opinion below

recognizes, hundreds of jurisdictions have enacted

varying restrictions on flavored tobacco products.

Pet.App.14a. That not only shows that this issue

continues to arise throughout the country, but also

that regulatory chaos already exists in direct defiance

of Congress’s design.

Further, next month, Californians will vote via

referendum on whether to cut off one of the nation’s

largest markets from flavored tobacco products. See

S.B. 793, 2019–2020 Reg. Sess. (Cal. 2020) (suspended

by referendum scheduled for November 8, 2022). If

Californians vote to ban flavored tobacco products,

there is little doubt that the issue will be the subject

of litigation—and will almost surely reach this Court

given the Ninth Circuit’s opinion in this case. The

Court should therefore take this opportunity to

address this substantial and growing problem.

C. The case is also important given the farreaching implications of the decision

below

The issue presented also goes beyond whether

states and localities can ban the sale of flavored

tobacco products.

First, tobacco product standards are not limited to

flavors but cover any “propert[y]” of a tobacco product.

21 U.S.C. § 387g(a)(4)(B)(i). That includes the amount

of nicotine in tobacco products, the length of cigars,

the properties of batteries in e-cigarettes, the types of

filters in cigarettes, and countless other aspects of

32

tobacco products. And under the Ninth Circuit’s rule,

states and localities can target all of those

“properties.” Again, all the state or locality has to do

is ban the sale of products that do not conform to their

preferred product standards.

These concerns are not just hypothetical. For

example, Utah has banned the sale of e-cigarettes that

contain more than a certain amount of nicotine. Utah

Admin. Code r. R384-415-5. California lawmakers, in

a proposed law, sought to ban cigarettes with singleuse filters. Assemb. B. 1690, 2021–2022 Reg. Sess.

(Cal. 2022) (as introduced Jan. 24, 2022). New York

legislators are considering a similar ban on single-use

filters. S.B. 1278, 2021–2022 Reg. Sess. (N.Y. 2021)

(as introduced Jan. 8, 2021). Illinois bans e-cigarettes

that contain certain ingredients, such as polyethylene

glycol and medium chain triglycerides. 410 Ill. Comp.

Stat 86/20. And numerous states regulate the type of

packaging that manufacturers can use for their ecigarettes. E.g., 430 Ill. Comp. Stat. 40/10; N.Y. Gen.

Bus. Law § 399-gg(1); Me. Stat. tit. 22, § 1560-B(2);

Mass. Gen. Laws ch. 270, § 27(b); 940 Mass. Code

Regs. 21.05; Mich. Comp. Laws § 722.642b(1).

Thus, not only are states and localities enacting a

slew of inconsistent bans on flavored tobacco products,

but they are also now moving even further, usurping

the authority Congress vested in FDA to set and

enforce other tobacco product standards.

Second, the problem is also not limited to tobacco

products. Throughout the U.S. Code, Congress has

reserved to the federal government the exclusive

power to set uniform product standards for a variety

of industries. For example, Congress passed the

33

Poultry Products Inspection Act (PPIA) to “assur[e]

that poultry products ... are wholesome, not

adulterated, and properly marked, labeled, and

packaged.” 21 U.S.C. § 451. To that end, the PPIA

includes an express preemption clause, which

provides that any “[m]arking, labeling, packaging, or

ingredient requirements ... in addition to, or different

than, those made under [the PPIA] may not be

imposed by any State.” Id. § 467e. That ensures that

labeling is consistent throughout the country.

Numerous other industries also rely on uniform,

national product standards. E.g., 21 U.S.C. § 678

(preempting certain state and local requirements

related to slaughtering animals); id. § 379r (same for

requirements for nonprescription drugs); id. § 360k

(same for requirements for medical devices); 42 U.S.C.

§ 7543(a) (same for requirements for vehicle

emissions); 46 U.S.C. § 4306 (same for safety

standards of “recreational vessel[s]”); 49 U.S.C.

§ 30103(b)(1) (same for performance standards for

motor vehicles).

But under the Ninth Circuit’s opinion, businesses

can no longer rely on Congress’s words. All a locality

needs to do to circumvent these preemption clauses is

to frame its law as a ban on the sale of products that

do not conform to its preferred requirements. So a

state could skirt the PPIA’s express preemption clause

by simply banning the sale of poultry products that do

not use its preferred packaging, negating the

preemption clause altogether. And that reasoning will

carry over to numerous other preemption clauses

throughout the U.S. Code.

34

The question presented is thus important not only

for one of the largest industries in the country, but for

numerous other industries as well.

III. THIS CASE PRESENTS AN IDEAL VEHICLE

This is an ideal vehicle for numerous reasons.

First, further percolation of the question presented

is not necessary. There have been three published

circuit court opinions (and a dissent) on the issue. 5

Those decisions have aired the issues, and the

disagreement over how to interpret the TCA’s

preemption clauses is entrenched. It is now time for

this Court to take up the issue. And even if there were

no disagreement among the circuits, this Court

routinely grants review in splitless preemption cases

given the “importance of the pre-emption issue.”

Wyeth v. Levine, 555 U.S. 555, 563 (2009) (noting that

certiorari was granted despite no split among lower

courts); see also Merck Sharp & Dohme Corp v.

Albrecht, 138 S. Ct. 2705 (2018) (granting certiorari in

same situation).

Second, this issue was squarely pressed and passed

upon below. There are no extraneous issues to prevent

the Court from resolving this case once and for all.

This Court’s resolution of how to interpret the TCA’s

three preemption-related provisions would dispose of

this case one way or another.

Third, this case also cleanly presents the core legal

question: whether the TCA preempts a total

prohibition on the sale of flavored tobacco products.

There are no line-drawing problems when it comes to

5 As noted (supra p. 5), the issue is also pending before the

Eighth Circuit.

35

whether Los Angeles’s Ordinance is a “prohibition.”

Some state and local restrictions on flavored tobacco

products might present difficult questions regarding

whether they are requirements “relating to” the sale

of tobacco products or “prohibiting” their sale. But Los

Angeles’s Ordinance does not: it is a blanket ban—a

paradigmatic prohibition. So the Ninth Circuit’s

supposed administrability problem is not presented

here. Pet.App.31a; see also Ysleta, 142 S. Ct. at 1943–

44 (rejecting administrability problems as a reason to

adopt an atextual interpretation).

CONCLUSION

This Court should grant the petition.

October 7, 2022

Respectfully submitted,

NOEL J. FRANCISCO

Counsel of Record

CHRISTIAN G. VERGONIS

RYAN J. WATSON

ANDREW J. M. BENTZ

CHARLES E.T. ROBERTS

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

Counsel for Petitioners