Amicus Curiae Brief — R.J. Reynolds Tobacco Company, et al., Petitioners v. County of Los Angeles, California, et al.

No. 22-338

IN THE

Supreme Court of the United States

___________

R.J. REYNOLDS T OBACCO COMPANY;

AMERICAN S NUFF COMPANY; AND

SANTA FE NATURAL T OBACCO COMPANY,

v.

Petitioners,

COUNTY OF LOS ANGELES; COUNTY OF LOS ANGELES

BOARD OF SUPERVISORS, ET AL.,

Respondents.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

___________

November 14, 2022

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTION PRESENTED

Whether the Tobacco Control Act expressly

preempts state and local laws prohibiting the sale of

flavored tobacco products.

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... iv

INTEREST OF AMICUS CURIAE ......................... 1

STATEMENT ........................................................... 1

SUMMARY OF ARGUMENT.................................. 4

REASONS FOR GRANTING THE PETITION ...... 7

I.

THE DECISION BELOW FLOUTS THIS

COURT’S FEDERAL PREEMPTION PRECEDENTS ............................................................. 7

II.

THE NINTH CIRCUIT’S FLAWED CONSTRUCTION OF THE TCA CONTRAVENES

THIS COURT’S SAVINGS-CLAUSE JURISPRUDENCE ..................................................... 10

III.

THIS IS AN IMPORTANT CASE THAT WARRANTS REVIEW .............................................. 15

CONCLUSION ....................................................... 17

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

AT&T v. Central Office Tel., Inc.,

524 U.S. 214 (1998) ................................. 12, 13, 14

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001) ............................................. 17

DIRECTV, Inc. v. Imburgia,

577 U.S. 47 (2015) ................................................. 1

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

Mgmt. Dist., 541 U.S. 246 (2004).............. 4, 6, 7, 8

Epic Sys. v. Lewis,

138 S. Ct. 1612 (2018) ......................................... 10

Geier v. American Honda Motor Co.,

529 U.S. 861 (2000) ................................. 13, 14, 17

Home Depot USA, Inc. v. Jackson,

139 S. Ct. 1743 (2019) ......................................... 11

Merck Sharp & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019) ........................................... 1

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) ....................................... 12, 14

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) ................................... 4, 6, 8, 9

RadLAX Gateway Hotel v. Amalgamated Bank,

566 U.S. 639 (2012) ............................................. 11

Russello v. United States,

464 U.S. 16 (1983) ............................................... 11

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Tex. & Pac. R. Co. v. Abilene Cotton Oil Co.,

204 U.S. 426 (1907) ............................................. 13

STATUTES:

Family Smoking Prevention and Tobacco Control

Act of 2009, Pub. L. No 111-31, 123 Stat. 1776 ... 2

21 U.S.C. § 331(a).................................................. 2

§ 331(c) .................................................. 2

§ 387b(5) ................................................ 2

§ 387g .................................................... 2

§ 387g(a) ................................................ 2

§ 387g(a)(1)(A) ...................................... 2

§ 387g(a)(3)(A) ................................ 2, 16

§ 387g(a)(3)(B) ................................ 2, 16

§ 387g(b)(2) ........................................... 2

§ 387g(e)(1)............................................ 2

§ 387p(a)(1) ..................................... 3, 11

§ 387p(a)(2)(A) ................................ 3, 10

§ 387p(a)(2)(B) ...................... 3, 4, 10, 11

§ 387 note ............................................ 12

The Communications Act of 1934

47 U.S.C. § 414 .................................................... 13

OTHER AUTHORITIES:

Julie Watson, Voters Approve California Law Banning Flavored Tobacco, The Associated Press

(Nov. 9, 2022) <https://bit.ly/3hs3Tzf> ............... 15

J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239 (2017)............ 16

1

INTEREST OF AMICUS CURIAE*

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with supporters nationwide. WLF promotes free enterprise,

individual rights, limited government, and the rule

of law. It often appears as an amicus curiae in important federal preemption cases, urging the Court

to ensure that federal law operates efficiently and

uniformly—as Congress intended. See, e.g., Merck

Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668

(2019); DIRECTV, Inc. v. Imburgia, 577 U.S. 47

(2015).

Federal law prohibits States and localities

from banning the sale of a tobacco product for failing

to meet state or local product standards that differ

from the federal standard. Yet a sharply divided

panel of the Ninth Circuit allowed Los Angeles

County to do just that. WLF fears that the decision

below, if allowed to stand, will undercut Congress’s

ability to maintain uniform, nationwide product

standards in important regulated industries.

STATEMENT

Tobacco is among the most federally regulated

products in America. For decades, Congress has

carefully controlled the interstate marketing and use

of tobacco products—from eliminating smoking on

* No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, contributed money for preparing or submitting this

brief. After timely notice, all counsel of record consented in

writing to WLF’s filing this brief.

2

public transportation and setting a minimum age for

tobacco sales to banning tobacco ads on television

and radio.

In 2009, Congress gave the Food and Drug

Administration broad authority to regulate tobacco

products in the Family Smoking Prevention and Tobacco Control Act of 2009, Pub. L. No 111-31, 123

Stat. 1776 (TCA). Among other things, the TCA prohibits cigarette flavors other than tobacco and menthol, 21 U.S.C. § 387g(a)(1)(A); bans the sale of

“adulterated” tobacco products that don’t conform to

this federal standard, id. §§ 331(a), (c), 387b(5); and

authorizes the FDA to decide whether to extend the

federal ban to other tobacco products or flavors, id.

§ 387g(a).

The TCA also authorizes the FDA to set nationwide, uniform standards for tobacco products.

Under the TCA, the FDA must understand, assess,

and account for the relative health effects of tobacco

products by setting “tobacco product standards,” id.

§ 387g; consider the illicit market for tobacco products in adopting such standards, id. §§ 387g(b)(2),

(e)(1); gather and study data to take further “action”

on “menthol or any artificial or natural flavor,” id.

§ 387g(a)(1)(A); and adopt other tobacco product

standards if the agency determines, after weighing

“the risks and benefits to the population as a whole,”

that a revised standard “is appropriate for the protection of the public health,” id. § 387g(a)(3)(A), (B).

The TCA carefully clarifies the role that

States and localities may play in regulating tobacco.

First, the TCA preempts “any” state or local requirement that imposes additional or different “to-

3

bacco product standards.” Id. § 387p(a)(2)(A). Second, “except” for state and local laws expressly

preempted by the preemption clause (e.g., laws imposing different tobacco product standards from the

federal standard), the TCA otherwise preserves the

authority of States, localities, federal agencies, the

Armed Forces, and Indian tribes to enact “more

stringent” measures “relating to or prohibiting the

sale * * * of tobacco products by individuals of any

age.” Id. § 387p(a)(1). Because it is subject to the

preemption clause, the preservation clause does not

preserve state and local regulation of flavors in tobacco. Third, the TCA saves from preemption state

and local requirements “relating to the sale” of tobacco products to “individuals of any age” and “relating to fire safety standards.” Id. § 387p(a)(2)(B).

In 2019, Los Angeles County enacted an ordinance banning all retail sales of flavored tobacco

products, including menthol flavored cigarettes. Pet.

App. 126a–36a. Petitioners sued the County, contending that the TCA preempts the County’s flavor

ban because it imposes a “tobacco product standard”

“different from” and “in addition to” the federal tobacco standard. Pet. App. 15a.

The Central District of California upheld the

County’s flavor ban. Pet. App. 49a–54a. A divided

panel of the Ninth Circuit affirmed. The majority decided that the TCA’s tobacco product standards govern only how a “product must be produced.” Pet.

App. 25a. Because the County’s flavor ban controls

sales rather than production, the majority reasoned,

it escapes the TCA’s preemption clause. Id.

4

Alternatively, the majority held that the

TCA’s savings clause saves the County’s flavor ban

from preemption. In the majority’s view, the County’s flavor ban is no more than 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 court saw no statutory significance in the TCA’s distinction between requirements

“relating to” sales in the savings clause and those

“prohibiting” sales in the preservation clause.

Judge Nelson dissented. Relying on this

Court’s decisions in National Meat Ass’n v. Harris,

565 U.S. 452 (2012), and Engine Manufacturers

Ass’n v. South Coast Air Quality Management District, 541 U.S. 246 (2004), he explained that States

and localities can’t escape preemption “by disguising

[their] regulation as a sales ban.” Pet. App. 38a. Because the County’s ban falls within the TCA’s

preemption clause and is neither preserved nor

saved, it is expressly preempted. Pet. App. 39a.

Although the Ninth Circuit denied rehearing

en banc, Judge Nelson voted to grant rehearing. Pet.

App. 73a–74a.

SUMMARY OF ARGUMENT

When the FDA approves a prescription drug

as safe and effective for its intended use, nobody

asks the Los Angeles Board of Supervisors to check

the science. Congress would never let five local politicians convene a meeting, watch tutorials on pharmacology and biochemistry, attempt their own clinical trials, second-guess the FDA’s weighing of the

drug’s therapeutic costs and benefits, “improve” the

5

drug with a redesign, and then ban the sale of the

FDA-approved design.

Just as it would not let local officials tinker

with the design of a federally approved prescription

drug, Congress would not let them overhaul the

product standards for one of the most highly regulated FDA-authorized products in America. But that

did not stop the Ninth Circuit from doing just that. If

Los Angeles County can ban FDA-authorized tobacco

products by imposing local standards that differ

from the TCA’s, then other States and localities can

do the same. That would contravene Congress’s express intent in the TCA, which prohibits state and

local governments from banning the sale of tobacco

products for failing to conform to state or local

standards. By blessing the County’s flavor ban, the

decision below discards Congress’s plainly stated

purpose and invites an avalanche of contradictory

state and local standards.

A divided panel of the Ninth Circuit saw it differently. It held that the County could ban FDAauthorized tobacco products by enacting local product standards that differ from the federal standard.

The majority concluded that the ban does not regulate product standards because it does not regulate

the manufacturing or production process. Insisting

that the County’s ban concerns only the sale of the

product, not how that product “must be produced,”

the court declared the ban free from TCA preemption. At every step, the panel majority erred.

The County cannot escape preemption simply

by recasting its flavor ban as a regulation of tobacco

sales rather than tobacco production. The Suprema-

6

cy Clause does not turn on such word play. This

Court has twice reversed the Ninth Circuit for interpreting an express preemption clause in a way that

allows States and localities to defeat federal product

standards with a sales ban. “[I]t ‘would make no

sense,’” this Court has explained, “to allow state regulations to escape preemption because they addressed the purchase, rather than manufacture, of a

federally regulated product.” Nat’l Meat, 565 U.S. at

464. Standards always target the product itself, so a

regulation of tobacco standards is preempted no

matter if it is aimed at “production” or “sales.” Engine Mfrs., 541 U.S. at 254. This case is no different.

Nor may the County rely on a sweeping construction of the TCA’s savings clause to escape

preemption. This Court has rejected—repeatedly—

such expansive readings. Many federal laws contain

a broad savings clause that protects state and local

regulatory power or preserves state and local remedies. Several times, a State or locality has argued

that a savings clause permits it to act in a way that

undermines the very law that contains the savings

clause. And time and again, the Court has rejected

those arguments and held that a savings clause is

not some kind of statutory self-destruct mechanism.

Because the Ninth Circuit’s reading of the TCA’s

savings clause conflicts with this Court’s commonsense construction of federal savings clauses, the

Court should intervene.

In carefully crafted, plain language, Congress

told Los Angeles County not to do this. The County

did it anyway. Such willful subversion of the Supremacy Clause should not be allowed to stand.

7

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW FLOUTS THIS COURT’S

FEDERAL PREEMPTION PRECEDENTS.

The TCA tasks the FDA with maintaining

uniform tobacco product standards—including flavors in tobacco products—based on a careful weighing of a variety of factors including public health.

States and localities may not countermand that regulatory scheme. Yet the County’s flavor ban elevates

a local tobacco flavor standard over the federal

standard. The Supremacy Clause won’t allow that.

According to the Ninth Circuit, however, because the County’s flavor ban does not dictate “how

[a] product must be produced,” it is not a tobacco

product “standard” but merely a “sales” ban. Pet.

App. 25a. Contrary to the view of the panel majority,

Congress’s ability to safeguard the federal interests

at stake in the TCA does not turn on such semantics.

Put differently, a standard is a standard for

preemption purposes no matter how it is enforced or

described. This Court’s holding in Engine Manufacturers proves the point. There, California prohibited

anyone from purchasing or leasing vehicles that

flunked California’s stringent emissions requirements. 541 U.S. at 248. But the Clean Air Act forbade States from setting emissions standards different from the federal standards. Id. at 252. Just as

the County contends here, California insisted that

the challenged ban regulated only the “purchase” of

vehicles, rather than their sale or manufacture. Id.

at 248.

8

The Court roundly rejected that argument,

which “confuses standards with the means of enforcing standards.” Id. at 253. California could not, the

Court explained, “engraft onto th[e] meaning of

‘standard’ a limiting component” by insisting that a

“standard” means “only [a] production mandat[e]

that require[s] manufacturers to ensure that the vehicles they produce have particular emissions characteristics.” Id. Treating such restrictions “differently for preemption purposes would make no sense,”

the Court concluded, because a “manufacturer’s

right to sell federally approved vehicles is meaningless” without a “purchaser’s right to buy them.” Id.

at 255. Simply put, “a standard is a standard even

when not enforced through manufacturer-directed

regulation.” Id. at 254. So too here.

National Meat reaffirms this sensible view of

federal preemption. There, a California law banned

the sale of meat from non-ambulatory animals. 565

U.S. at 463–64. Manufacturers argued that the Federal Meat Inspection Act (FMIA) preempted state

“requirements * * * which are in addition to, or different than those made under [the FMIA].” Id. at

458. But because the FMIA preempted only production mandates, California argued that its sales ban

escaped preemption. Id. at 463.

The Court unanimously disagreed. Although

the FMIA’s preemption clause does “not usually foreclose state regulation of the commercial sales activities of slaughterhouses,” this Court declared California’s sales ban preempted. Id. “[I]t ‘would make no

sense,’” the Court explained, “to allow state regulations to escape preemption because they addressed

9

the purchase, rather than manufacture, of a federally regulated product.” Id. at 464.

A contrary holding, the Court explained,

would have allowed California to “impose any regulation on slaughterhouses just by framing it as a ban

on the sale of meat produced in whatever way the

State disapproved.” Id. at 464. To allow States to circumvent federal law so easily “would make a mockery of the FMIA’s preemption provision.” Id.

As these cases confirm, federal preemption

does not turn on categorical framing or clever phrasing by a State or locality. It makes no difference how

a State or locality enforces its contrary standard.

Whether it compels manufacturers to comply or prohibits retailers from selling nonconforming goods,

any state or local product standard that seeks to

override the federal standard is preempted.

The Ninth Circuit’s holding upends this commonsense view of federal preemption. And it does so

by reading a preemption clause that preempts “any”

requirement that differs from the federal standard

as one preempting only requirements about “how [a

tobacco] product must be produced.” Pet. App. 25a.

That reading not only defeats the TCA but also

“make[s] a mockery” of federal preemption. Nat’l

Meat, 565 U.S. at 464. This Court should grant review to vindicate Congress’s important federal interest in uniformity.

10

II.

THE NINTH CIRCUIT’S FLAWED CONSTRUCTION OF THE TCA CONTRAVENES THIS

COURT’S SAVINGS-CLAUSE JURISPRUDENCE.

Reasonably construed, the TCA does not

preempt the County’s imposing age-based or firesafety regulations on tobacco products. But it prohibits the County from defeating federal tobacco product standards under the guise of regulating “sales.”

The TCA’s preemption and savings clauses are clear

about that. Put differently, a state or local law may

complement the TCA; it may never impede it. Holding otherwise, the panel majority botched the TCA’s

statutory scheme by ignoring vital canons of statutory construction and this Court’s savings-clause cases.

“[W]ith respect to a tobacco product,” the TCA

preempts “any requirement which is different from,

or in addition to,” federal tobacco product standards.

21 U.S.C. § 387p(a)(2)(A). The TCA’s savings clause

restores only a narrow sliver of what the preemption

clause takes away. State and local governments may

enact “requirements relating to the sale” of tobacco

products to “individuals of any age” or “relating to

fire safety standards.” Id. § 387p(a)(2)(B). The Ninth

Circuit transformed this narrow sliver into a plank.

In reading the TCA’s savings clause expansively, the

decision below ignored two fundamental rules of

statutory construction.

First, it failed to read the TCA’s preemption,

savings, and preservation clauses in context with the

TCA itself. “A statute’s meaning does not always

turn solely on the broadest imaginable definition of

its component words.” Epic Sys. v. Lewis, 138 S. Ct.

11

1612, 1631 (2018). A court, after all, construes statutes, not isolated provisions “in a vacuum.” Home

Depot USA, Inc. v. Jackson, 139 S. Ct. 1743, 1748

(2019) (cleaned up). It is important, then, that a

court “read [a statute’s] words in their context and

with a view to their place in the overall statutory

scheme.” Id. Reading a clause out of context can

wreak havoc on the operation of the rest of the statute. This case shows how.

Unlike the preservation clause, which preserves non-preempted requirements “relating to or

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

§ 387p(a)(1), the TCA’s savings clause says only that

the preemption clause “does not apply to requirements relating to the sale” of tobacco products. Id.

§ 387p(a)(2)(B). Because “Congress acts intentionally” whenever it “includes particular language in one

section of a statute but omits it in another section,”

Russello v. United States, 464 U.S. 16, 23 (1983),

Congress’s choice to omit the words “or prohibiting”

from a nearly identical phrase in the savings clause

must be given effect. Here that means giving effect

to Congress’s choice that state and local governments cannot ban the sale of tobacco products based

on differing local product standards.

Second, the Ninth Circuit ignored “the commonplace of statutory construction that the specific

governs the general.” RadLAX Gateway Hotel v.

Amalgamated Bank, 566 U.S. 639, 645 (2012). “The

general/specific canon is perhaps most frequently

applied to statutes in which a general permission or

prohibition is contradicted by a specific prohibition

or permission.” Id. That is the situation here, where

a broad reading of a savings clause goes against spe-

12

cific provisions ensuring that the FDA sets “national

standards controlling the manufacture of tobacco

products and the * * * ingredients used in such

products.” 21 U.S.C. § 387 note.

This Court has interpreted many savings

clauses in other federal laws. Time and again, it has

refused to allow a savings clause to upset Congress’s

carefully chosen regulatory scheme. Instead, each

time it has read the savings clause in a way that is

incompatible with the Ninth Circuit’s reading here.

1. Morales v. Trans World Airlines, Inc., 504

U.S. 374 (1992). The Airline Deregulation Act contains a savings clause held over from the Federal

Aviation Act. Nothing in the FAA, the clause says,

“shall in any way abridge or alter the remedies now

existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” Id. at 378.

The ADA bars the States from regulating airline prices, routes, or services. Id. at 378–79. The

Morales plaintiffs argued that the FAA’s savings

clause saved that bar from preempting their statelaw deceptive advertising claim. Rejecting this argument, Morales observes that “the specific governs

the general.” Id. at 385. Congress, Morales concludes, does not “undermine [a] carefully drawn

statute through a general savings clause.” Id. A savings clause cannot overcome a specific provision—

such as the “prices, routes, or services” bar—that divides authority between state and federal governments.

13

2. AT&T v. Central Office Tel., Inc., 524 U.S.

214 (1998). “Nothing in this [law],” the Communications Act of 1934 says, “shall in any way abridge or

alter the remedies now existing at common law or by

statute.” 47 U.S.C. § 414.

A set of rules in the Communications Act required AT&T to sell its services only at rates it filed

with the government. A telephone-service broker

brought state-law claims that, if successful, would

have required AT&T to provide service at a rate lower than AT&T’s filed rates. Id. at 222–23. AT&T

holds that the federal rate-filing rules preempt the

broker’s state-law claims.

The Communications Act’s general savings

clause, the Court said, changes nothing: “The savings clause cannot in reason be construed as continuing in customers a common law right, the continued

existence of which would be absolutely inconsistent

with the provisions of the act.” Id. at 227–28 (quoting Tex. & Pac. R. Co. v. Abilene Cotton Oil Co., 204

U.S. 426, 446 (1907)). In other words, the Court explained, “the act cannot be held to destroy itself.” Id.

at 228.

3. Geier v. American Honda Motor Co., 529 U.S.

861 (2000). The National Traffic and Motor Vehicle

Safety Act contains a savings clause that says “‘compliance with’ a federal safety standard ‘does not exempt any person from any liability under common

law.’” 529 U.S. at 868.

Sued for omitting airbags from the 1987 Honda

Accord, Honda invoked a regulation under the Act

that made airbags merely an optional safety feature.

14

The plaintiff answered with the Act’s savings clause.

The Court rejected that argument.

Geier reiterated that this Court “has repeatedly

declined to give broad effect to savings clauses where

doing so would upset the careful regulatory scheme

established by federal law.” Id. at 870. Put another

way, a savings clause “does not bar the ordinary

working” of “pre-emption principles.” Id. at 869. And

because the Act’s regulation made airbags optional,

the plaintiff’s state-law claims, which could succeed

only if federal law required airbags, were preempted—the savings clause notwithstanding. Id. at 874–

86.

Here, if Congress had meant for the TCA to

categorically exempt from preemption every state

and local ban on tobacco sales, it would have made

no sense for Congress to single out “requirement[s]

* * * relating to tobacco product standards” as an excepted subcategory of preempted requirements. Nor

would the savings clause need to qualify “sales” with

“individuals of any age” and “relating to fire safety

standards.”

And while the Ninth Circuit relied on the

TCA’s savings clause to discard specific provisions of

the TCA, Morales, AT&T, and Geier all use a specific

statutory provision to limit the scope of a savings

clause. The Ninth Circuit’s reading thus conflicts

with this Court’s understanding, grounded in sound

principles of statutory interpretation, that a federal

savings clause is not an invitation for States and localities to undermine federal law. If that understanding is to continue to hold sway, the petition

must be granted.

15

III.

THIS IS AN IMPORTANT CASE THAT WARRANTS REVIEW.

This case matters. The decision below is not a

subtle encroachment on federal power. Rather, it is

an aggressive nullification of federal law. Left in

place, the Ninth Circuit’s holding could allow States

and localities to evade other federal product standards by merely framing a contrary standard as a ban

on sales. It also threatens to lay waste to years of

FDA work while exposing petitioners—and other tobacco manufacturers—to massive liability for selling

FDA-authorized products.

This is not wild speculation. As the petition

highlights, hundreds of jurisdictions have enacted

similar laws, spurring litigation in four courts of appeals. Pet. 30. And only last Tuesday, Californians

adopted Proposition 31, which bans the sale of flavored tobacco products in one of the nation’s largest

markets. Julie Watson, Voters Approve California

Law Banning Flavored Tobacco, The Associated

Press (Nov. 9, 2022) <https://bit.ly/3hs3Tzf>. There

is thus no reason to await further percolation, as this

case squarely presents the Court with an early opportunity to quell a litigation explosion affecting a

highly regulated national industry.

The stakes are high. National uniformity in

product standards protects manufacturers and consumers alike. It allows for businesses to operate under one set of rules—federal rules—instead of dozens

or even hundreds of sets of potentially conflicting

rules. Without uniformity, manufacturers are forced

to either comply with a multitude of conflicting,

overlapping, and burdensome state and local stand-

16

ards or risk liability from state and local regulatory

sanctions. Regardless of the choice made, these increased risks raise the cost of doing business nationwide. All too often, those costs inevitably are

passed on to consumers.

The Ninth Circuit’s misreading of the TCA’s

preemption clause also invites second guessing of the

FDA’s studied conclusions on how best to balance the

TCA’s multifaceted policy objectives. The panel majority’s holding, if allowed to stand, will prevent

Congress from accomplishing those objectives by

subjecting tobacco manufacturers to a jumble of disparate product standards, eradicating the federal

uniformity that Congress decided is an essential element of federal tobacco regulation.

What’s more, the FDA has expertise the

County lacks. The FDA’s work “requires deep

knowledge of the human body and the biological effects of the substances we ingest.” J. Harvie Wilkinson III, Assessing the Administrative State, 32

J.L. & Pol. 239, 246 (2017). And the TCA requires

more still. Indeed, the current federal tobacco product standards reflect the FDA’s studied determination, after weighing “the risks and benefits to the

population as a whole,” that a revised standard is

not “appropriate for the protection of the public

health.” 21 U.S.C. §§ 387g(a)(3)(A), (B).

These complex issues are best handled by the

FDA, with its teams of doctors, scientists, statisticians, and economists, and not by the Los Angeles

Board of Supervisors, however wise and wellintentioned its members may be. Even leaving aside

the TCA’s plainly written express preemption clause,

17

this Court has repeatedly recognized that when an

agency’s regulatory judgment reflects a careful balancing of competing considerations under a comprehensive federal scheme, any state or local law that

could disrupt the balance struck by the agency is

preempted. See, e.g., Buckman Co. v. Plaintiffs’ Legal

Comm., 531 U.S. 341, 349–51 (2001); Geier, 529 U.S.

at 874–86. That is this case.

Los Angeles County is perfectly free to uphold

local interests; it should continue its traditional role

of regulating when, where, how, and to whom tobacco products are sold—including age-based and firesafety regulations. But this Court must intervene

and respond whenever any State or locality brazenly

subverts federal law. This is just such a case.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

November 14, 2022

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org