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

Supreme Court briefFeb 7, 2023

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No. 22-338

IN THE

Supreme Court of the United States

R.J. REYNOLDS TOBACCO COMPANY;

AMERICAN SNUFF COMPANY; AND

SANTA FE NATURAL TOBACCO COMPANY,

Petitioners,

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

REPLY TO BRIEF IN OPPOSITION

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

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

ARGUMENT .............................................................. 2

II.

THE NINTH CIRCUIT’S HOLDING CONFLICTS

WITH THIS COURT’S PRECEDENTS AND THE

REASONING OF OTHER CIRCUITS ......................... 2

The Ninth Circuit’s interpretation of

the preemption clause contravenes

this Court’s precedents .............................. 2

The Ninth Circuit’s interpretation

of the savings clause contravenes

this Court’s precedents .............................. 8

The decision below conflicts with the

reasoning of other courts of appeals ........ 10

THIS QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT.............................. 11

III. THIS CASE PRESENTS AN IDEAL VEHICLE .......... 12

CONCLUSION ......................................................... 13

TABLE OF AUTHORITIES

Page(s)

CASES

Corley v. United States,

556 U.S. 303 (2009) .............................................. 10

Engine Mfrs. Ass’n v. S. Coast Air

Quality Mgmt. Dist.,

541 U.S. 246 (2004) ............................ 1–4, 7, 11–12

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) .................................. 1–2, 7, 12

NATO v. City of Providence,

731 F.3d 71 (1st Cir. 2013) .............................. 1, 10

R.J. Reynolds Tobacco Co. v. Bonta,

No. 22-56052 (9th Cir. Jan. 27, 2023) ................. 11

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

City of New York,

708 F.3d 428 (2d Cir. 2013) ............................. 1, 10

United States v. Innovative Biodefense, Inc.,

2019 WL 2428670

(C.D. Cal. Feb. 22, 2019) ........................................ 5

Ysleta Del Sur Pueblo v. Texas,

142 S. Ct. 1929 (2022) ................................ 1–2, 8–9

STATUTES

Food, Drug, and Cosmetic Act (FDCA)

FDCA § 907, 21 U.S.C. § 387g ..................... 4–5, 12

FDCA § 911, 21 U.S.C. § 387k ............................... 5

FDCA § 916, 21 U.S.C. § 387p ........................... 4, 8

iii

Family Smoking Prevention and

Tobacco Control Act of 2009,

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

L.A. Cnty. Code § 11.35.020 ........................................ 7

L.A. Cnty. Code § 11.35.070 ........................................ 7

LEGISLATIVE MATERIALS

H.R. Rep. No. 111-58, pt. 1 (2009) .............................. 6

INTRODUCTION

This case warrants review for three reasons. First,

the decision below flouts this Court’s precedents and

conflicts with the reasoning of other courts of appeals.

This Court has “twice 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–37a (Nelson, J.,

dissenting) (citing Engine Mfrs. Ass’n v. S. Coast Air

Quality Mgmt. Dist., 541 U.S. 246 (2004) and Nat’l

Meat Ass’n v. Harris, 565 U.S. 452 (2012)). The Ninth

Circuit repeated the same mistake here—this time

with the Tobacco Control Act (TCA). Nothing the

County says resolves the conflict between that

decision and Engine Manufacturers and National

Meat.

The Ninth Circuit’s disregard of this Court’s

decisions doesn’t stop there. Ysleta Del Sur Pueblo v.

Texas, 142 S. Ct. 1929 (2022), held that courts must

give effect to Congress’s distinction between

regulations and prohibitions. But the Ninth Circuit

refused to do so in the TCA, and nothing the County

argues alleviates that conflict. The County likewise

fails to reconcile the reasoning below with that of the

First and Second Circuits, which upheld restrictions

on the sale of flavored tobacco products because they

were not total prohibitions like the one here. See

NATO v. City of Providence, 731 F.3d 71 (1st Cir.

2013); U.S. Smokeless Tobacco Mfg. Co. v. City of New

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

Second, this issue is exceptionally important. The

interpretation of the TCA’s preemption provisions has

wide-ranging consequences because of the size of the

tobacco industry (something the County cannot

minimize), and because states and localities continue

to impose conflicting standards on tobacco products.

Numerous other industries also rely on uniform,

national standards. The decision below puts those in

jeopardy. And though the County argues the TCA is

unique, the core issue is whether a locality can endrun preemption of local standards through a sales

ban. If so, that holding applies elsewhere. The fact

that California has also enacted a flavor ban is

immaterial, because if the County’s ban is preempted,

then so is California’s.

Third, this case is an ideal vehicle—something the

County does not dispute.

ARGUMENT

THE NINTH CIRCUIT’S HOLDING CONFLICTS WITH

THIS COURT’S PRECEDENTS AND THE REASONING

OF OTHER CIRCUITS

The decision below conflicts with Engine

Manufacturers, National Meat, and Ysleta. Instead of

addressing that head-on, the County leads with a

defense of the decision below. While that decision is

demonstrably wrong, the key point here is that it

contravenes this Court’s caselaw. The County is hardpressed to argue otherwise. Indeed, the County does

not address the conflict until page 21. And its meager

efforts to reconcile that conflict fail.

A. The Ninth Circuit’s interpretation of the

preemption clause contravenes this

Court’s precedents

1. This Court’s precedents (and the TCA’s text)

refute the County’s argument that “tobacco product

standards” are limited to how a product is

manufactured and that localities can therefore

enforce their own standards at the point of sale. E.g.,

BIO 12–13.

a. The County contends that Engine Manufacturers

does not control because “[l]anguage in one statute

usually sheds little light upon the meaning of

different language in another statute.” BIO 22. But

the relevant language here is not different. Both the

Clean Air Act (Engine Manufacturers) and the TCA

preempt “standards.” And both statutes require

looking to the plain meaning of the word “standard.”

541 U.S. at 253. So Engine Manufacturers’ key

holding applies: “a standard is a standard even when

not

enforced

through

manufacturer-directed

regulation.” Id. at 254. It is thus no answer to say,

“Petitioners can keep making flavored tobacco

products. They simply cannot sell them in Los Angeles

County.” BIO 12. This Court rejected the identical

argument

Engine

Manufacturers:

“The

manufacturer’s right to [make federally authorized

tobacco products] is meaningless in the absence of a

purchaser’s right to buy them.” 541 U.S. at 252, 255.

Wait, the County says. The Clean Air Act’s

preemption clause had “categorical” sweep. Id. at 256.

But that was because the clause preempted

standards: “It is … impossible to find … an exception

for standards imposed through purchase restrictions

rather than directly upon manufacturers.” Id. Exactly

so here. Nothing in the TCA’s preemption clause

exempts standards enforced at the point of sale.

Further, the TCA’s “preservation sandwich” does

not change what “standard” means. See BIO 22. The

preemption clause is an “except[ion]” to the

preservation clause, 21 U.S.C. § 387p(a)(1), meaning

that the preemption clause takes precedence. And the

savings clause saves a portion of what already is

preempted, meaning it cannot change what the

preemption clause covers in the first place. Thus,

these surrounding clauses neither change what a

“standard” is nor distinguish this case from Engine

Manufacturers.

b. The decision below also flouts the statutory text.

Both sides agree that preemption analysis “must be

grounded in the text and structure of the statute.” BIO

10. The problem for the County is that nothing in the

TCA’s text limits “tobacco product standards” to

manufacturing. One need look no further than the Act

itself. The TCA contains two tobacco product

standards—not one, as the County claims. BIO 6; see

21 U.S.C. § 387g(a)(1)(B). One of them bans certain

characterizing flavors in cigarettes. 21 U.S.C.

§ 387g(a)(1), (a)(2), (a)(3)(A). Congress thus said that

a flavor ban is a “tobacco product standard.” True, the

federal sales ban based on this standard is in a

separate provision. See BIO 15. But that proves the

point: a standard is a standard, regardless of how it is

enforced. See Engine Mfrs., 541 U.S. at 253–54

(“distinction between ‘standards,’ … and methods of

standard enforcement, … is borne out” by the Clean

Air Act’s “separate provisions enforc[ing]” those

“standards”).

The County nonetheless argues that other

categories in the preemption clause (e.g., modified risk

tobacco product and labeling requirements) implicitly

cabin the meaning of “tobacco product standards”

because they target manufacturing. BIO 12. But

Congress explicitly said that a flavor ban is a tobacco

product standard, so those other categories are

irrelevant.

In any event, those categories are not limited to

manufacturing. For example, a product is a “modified

risk tobacco product” if it “is sold or distributed for use

to reduce harm or the risk of tobacco-related disease.”

21 U.S.C. § 387k(b)(1) (emphasis added). So a product

that has been on the market for years with no physical

changes becomes a “modified risk tobacco product” if

a manufacturer’s labeling describes it as presenting

less risk. And courts have held that a product’s

website—which

has

nothing

with

manufacturing—can amount to labeling. See United

States v. Innovative Biodefense, Inc., 2019 WL

2428670, at *4 (C.D. Cal. Feb. 22, 2019) .

The County invokes the same words-are-knownby-their-company argument when it comes to how the

TCA describes “tobacco product standards.” The TCA

says those standards can regulate “ingredients,”

“constituents,”

“properties,”

etc.

U.S.C.

§ 387g(a)(4)(B). The County maintains that

“’properties’” must be “read consistently” with the

other words. BIO 16. But the meaning of “properties”

is plain. Pet. 14–15. Indeed, the County never argues

that a flavor is not a property. But the other items are

not limited to manufacturing anyway. “Constituents,”

for example, include things already in the product,

e.g., nicotine, not just manufactured additives. That

list, therefore, provides no basis for limiting

“properties” to manufacturing.

The County’s other “textual” points warrant even

less discussion. For example, the County says (at 13)

that limiting tobacco product standards to

manufacturing is “consistent” with one purpose of the

TCA, i.e., to set national manufacturing standards.

But purpose cannot override text. Moreover, another

purpose of the TCA is “to continue to permit the sale

of tobacco products to adults.” TCA § 3(7), Pub. L. No.

111-31, 123 Stat. 1776, 1782 (2009). The County’s

interpretation torpedoes that purpose.

The County also argues that Petitioners’ reading

renders the preservation clause a nullity. Not so. It

has “separate functions.” Pet.App.42a (Nelson, J.,

dissenting). For example, it preserves the authority of

federal agencies, the military, and Indian Tribes,

which may set their own tobacco product standards.

Id. It also clarifies that only those categories listed in

the preemption clause expressly preempt state and

local laws, id., and rebuts any suggestion that

Congress through the TCA occupied the field of

tobacco regulation. The County offers no response.

The County points next (at 14) to legislative history.

True, an earlier version of the bill that became the

TCA reserved to Congress the power to ban all

cigarettes, while the TCA merely forbids FDA from

doing so. But neither provision addresses state or local

authority.

The

legislative

history

actually

supports

Petitioners’ reading. The TCA’s House Report said

FDA has exclusive “authority to establish product

standards regarding … ingredients, additives, and all

other properties of the tobacco product.” H.R. Rep. No.

111-58, pt. 1, at 39–40 (2009) (emphasis added). So

“property” refers to any property of the final product,

regardless of how the property got there.

In short, the Ninth Circuit’s artificial limitation of

“tobacco product standards” conflicts with Engine

Manufacturers and the TCA’s text.

2. The decision below also conflicts with National

Meat, 565 U.S. 452, which held that even where a

preemption clause is limited to manufacturing and

production standards, a state cannot prohibit the sale

of products that depart from the state’s own standard.

The County claims the TCA differs from the statute in

National Meat. But, again, the preservation and

savings clauses cannot change the preemption

clause’s meaning. Thus, National Meat applies here:

“[I]f [California’s] sales ban were to avoid the [act’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

[act’s] preemption provision.” 565 U.S. at 464. The

TCA must preempt sales bans, too, to avoid rendering

the preemption clause “a mockery.”

The County avers (at 24–25) that California’s sales

ban in National Meat enforced a separate provision

expressly regulating manufacturing. But the Court

analyzed each provision independently. See 565 U.S.

at 971-72. In any event, the same is practically true

here. The County has forbidden manufacturers from

“add[ing]” flavors to tobacco products. L.A. Cnty. Code

§ 11.35.020(C). The County then enforces that

prohibition by banning sales of products that do not

conform to its standard. Id. § 11.35.070(E). That is

precisely what this Court in National Meat said

California may not do.

B. The Ninth Circuit’s interpretation of the

savings clause contravenes this Court’s

precedents

The Ninth Circuit’s alternative holding—that the

savings clause saves the County’s ban—also conflicts

with this Court’s decisions and misreads the TCA.

1. Ysleta made clear that the words “regulation” and

“prohibition” have independent meaning, especially

when used in the same statute. 142 S. Ct. at 1938. So

in the TCA, the phrases “requirements relating to the

sale” and “requirements prohibiting the sale” must

mean different things. And since the savings clause

only saves the former, the County’s ban cannot

survive.

The County concedes its alternative interpretation

does not give independent meaning to both phrases.

The County tries to justify this because they are

merely “examples” of measures that the preservation

clause preserves. BIO 19, 26; see 21 U.S.C.

§ 387p(a)(1). But if “measures relating to the sale”

meant the same thing as “measures prohibiting the

sale,” Congress would not have said both or

distinguished them in the disjunctive. The “examples”

clause would mean the same if Congress had omitted

“prohibiting” entirely.

Moreover, Petitioners have not ascribed “to one

word a meaning so broad that it assumes the same

meaning as another statutory term.” See BIO 20. The

County simply concentrates on the wrong word

(“requirement”). The proper focus is on the words

“relating to” and “prohibiting.” And that is why it is

the County that has violated its interpretive rule, by

defining “relating to” to include “prohibiting.”

The County also tries (at 27) to distinguish the TCA

because “[u]nlike ‘prohibit’ and ‘regulate’ in Ysleta, …

a ‘prohibition’ can clearly ‘relate to’ its subject.” That

highlights the County’s textual problem: it reads

“relating to” as swallowing “prohibiting.” If that is

true, “prohibiting” is meaningless. Moreover, like Los

Angeles, Texas “observe[d] that in everyday speech

someone could describe its laws as ‘prohibiting’ bingo

unless the State’s time, place, and manner regulations

are followed.” 142 S. Ct. at 1938. But this Court found

that “hard to see” given that Congress used both

“regulate” and “prohibit.” Id. at 1938–39. So too here.

That the preemption clause uses “requirements

relating to,” see BIO 20, actually proves that “relating

to” does not include “prohibiting.” The TCA’s

preemption provisions use “relating to” five times.

Three (including the one the County cites) reference

“standards”—“fire safety standards” and “tobacco

product standards.” Those uses show “relating to”

does

not

encompass

prohibitions—because

governments do not prohibit standards, they set them.

The fourth occurrence is in the preservation clause,

where Congress distinguished between requirements

“relating to” and “prohibiting” the sale of tobacco

products. Governments can obviously enact

requirements “relating to” sales or “prohibiting” sales.

So the preservation clause confirms that Congress did

not intend “relating to” to encompass “prohibiting.”

That leaves the savings clause’s reference to

requirements “relating to the sale” and omission of

“prohibiting the sale.” Thus, the only way to

harmonize these provisions is to conclude that

“relating to” does not include “prohibiting.”

There is also no merit to the contention that history

requires ignoring Congress’s distinction. See BIO 27.

True, states have long regulated tobacco sales. But

from the early-twentieth century until the twentyfirst, states did not entirely prohibit categories of

tobacco products. See BIO 2–4. Rather, when

Congress adopted the TCA in 2009, the key area

where states had legislated on tobacco products was

regulating sales (not prohibiting them).

2. Finally, the County doesn’t dispute that its

interpretation renders “individuals of any age” in the

savings clause superfluous. BIO 20; see also

Pet.App.44a (Nelson, J., dissenting). That conflicts

with this Court’s caselaw. E.g., Corley v. United

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

C. The decision below conflicts with the

reasoning of other courts of appeals

The Ninth Circuit’s decision conflicts with the

reasoning of the First and Second Circuits. As Judge

Nelson explained, “the Second Circuit upheld a more

limited regulation that still allowed sales of flavored

tobacco, and just required that they take place in

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

(citing U.S. Smokeless, 708 F.3d at 431). And that

court “was careful to avoid implying that a complete

sales ban would be permissible.” Id. NATO also

upheld a local restriction but not a blanket prohibition

like the County’s here. 731 F.3d at 82. Among these

laws, Los Angeles’s Ordinance stands alone in its

scope—and so does the decision below. This Court

should resolve this conflict among the circuits.

II. THIS QUESTION PRESENTED IS EXCEPTIONALLY

IMPORTANT

Nothing the County offers undermines the

importance of the question presented. See Pet. 29–34.

1. The County argues (at 30) that this case is no

longer important because California has also banned

flavored tobacco products. But if Los Angeles’s ban

falls, so too will California’s. Indeed, a challenge to

California’s law is already on its way to this Court. See

Order, R.J. Reynolds Tobacco Co. v. Bonta, No. 2256052 (9th Cir. Jan. 27, 2023) (affirming denial of

preliminary injunction).

2. The County argues (at 30–31) that the Ninth

Circuit’s holding will not reverberate elsewhere

because other statutes that preempt local “standards”

do not “resemble[]” the TCA. In particular, the County

highlights that other statutes do not contain

preservation or savings clauses.

But as explained, the preservation and savings

clauses do not change the meaning of “tobacco product

standard” in the preemption clause. And as this Court

has held, a standard is a standard no matter how it is

enforced. Engine Mfrs., 541 U.S. at 254. If the County

can evade the TCA’s preemption clause by simply

enforcing its standard at the point of sale, then every

state and locality can do so when it comes to other

industries. Thus, the interpretation of the TCA’s

preemption clause will reverberate through numerous

other federal statutes.

3. Finally, the County unpersuasively disputes the

practical stakes.

It suggests (at 32) that FDA’s “possible” ban on

menthol as a characterizing flavor in cigarettes might

lessen the need for review. But that “possible” action

is far from certain, and even if it materializes, it likely

would not take effect for a significant period of time.

See 21 U.S.C. § 387g(d)(2) (stating such rules

generally cannot take effect until at least one year

after promulgation). Moreover, the County bans the

sale of all flavored tobacco products, not just menthol

cigarettes, including even those flavored products

with FDA authorization. E.g., Pet. 8 & n.2–3.

The County also fails to grapple with the fact that

“tobacco product standards” extend beyond flavors—

they can cover any product “property.” And localities

are running roughshod over uniform federal

standards, imposing immense regulatory costs (and

confusion). Pet. 32.

Finally, it is unclear why the County thinks the

practical importance depends on the number of other

cases that examined similar laws. BIO 34. Even one

is enough when preemption is at issue, because “if

[even] one State or [locality] may enact such rules,

then so may any other; and the end result would undo

Congress’s carefully calibrated regulatory scheme.”

Engine Mfrs., 541 U.S. at 255; e.g., Nat’l Meat, 565

U.S. at 465 (noting only one circuit decision).

What is clear is that the County does not disclaim

any ability to regulate all properties of tobacco

products. That completely upends Congress’s design

and warrants this Court’s intervention.

III. THIS CASE PRESENTS AN IDEAL VEHICLE

The County does not dispute that this case presents

an ideal vehicle. The issue was pressed and passed

upon below. This case cleanly presents the core legal

question. And further percolation is unnecessary.

CONCLUSION

This Court should grant the petition.

February 7, 2023

Respectfully submitted,