Petition for Writ of Certiorari — R.J. Reynolds Tobacco Company, et al., Petitioners v. Rob Bonta, Attorney General of California, et al.

No. 23-____

IN THE

Supreme Court of the United States

R.J. REYNOLDS TOBACCO COMPANY; R.J. REYNOLDS

VAPOR COMPANY; AMERICAN SNUFF COMPANY, LLC;

SANTA FE NATURAL TOBACCO COMPANY, INC.;

MODORAL BRANDS INC.; NEIGHBORHOOD MARKET

ASSOCIATION, INC.; AND MORIJA, LLC DBA

VAPIN’ THE 619,

Petitioners,

v.

ROBERT BONTA, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF CALIFORNIA; AND SUMMER

STEPHAN, IN HER OFFICIAL CAPACITY AS DISTRICT

ATTORNEY FOR THE COUNTY OF SAN DIEGO,

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 to use

sales bans to evade express federal preemption of state

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 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

manufacturer-directed regulation.” Id. And in

National Meat, this Court rejected the Ninth Circuit’s

conclusion that California could avoid preemption of

state manufacturing standards by framing its 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. Nonetheless, in

R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29

F.4th 542 (9th Cir. 2022) (“Los Angeles”), the Ninth

Circuit held that states can evade the federal Tobacco

Control Act’s express preemption of state product

standards by banning the sale of products that do not

meet state standards. As Judge Nelson explained in

dissent there, the Ninth Circuit repeated the same

errors it made in Engine Manufacturers and National

Meat and “allow[ed] states … to defeat [the] entire

purpose” of the Act’s preemption provisions. Id. at 561

(Nelson, J. dissenting). Los Angeles bound the Ninth

Circuit in this case, which presents the same question:

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

direct, 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 R.J. Reynolds Vapor Company is a direct,

wholly owned subsidiary of RAI Innovations Company;

RAI Innovations 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.

Petitioner American Snuff Company, LLC 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, 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 Modoral Brands Inc. is a subsidiary of

RAI Innovations Company; RAI Innovations

Company is a 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

Petitioner Neighborhood Market Association, Inc.

has no parent corporation and no publicly held

corporation owning 10% or more of its stock exists.

Petitioner Morija, LLC dba Vapin’ the 619 has no

parent corporation and no publicly held corporation

owning 10% or more of its stock exists.

iv

PARTIES TO THE PROCEEDING

Petitioners, who were the Plaintiffs-Appellants in

the Ninth Circuit, are R.J. Reynolds Tobacco

Company, R.J. Reynolds Vapor Company, American

Snuff Company, LLC, Santa Fe Natural Tobacco

Company, Inc., Modoral Brands Inc., Neighborhood

Market Association, Inc., and Morija, LLC dba Vapin’

the 619.

Respondents, who were the Defendants-Appellees

in the Ninth Circuit, are Robert Bonta, in his official

capacity as Attorney General of California, and

Summer Stephan, in her official capacity as District

Attorney for the County of San Diego.

v

RELATED PROCEEDINGS

R.J. Reynolds Tobacco Co., et al. v. Bonta, et al., No.

3:22-cv-01755, U.S. District Court for the Southern

District of California. Order denying preliminary

injunction and denying injunction pending appeal

entered Nov. 15, 2022. Judgment dismissing

complaint with prejudice entered March 15, 2023.

R.J. Reynolds Tobacco Co., et al. v. Bonta, et al., No.

22-56052, U.S. Court of Appeals for the Ninth Circuit.

Order denying injunction pending appeal entered

November 28, 2022. Order affirming district court’s

denial of preliminary injunction motion entered

January 27, 2023.

R.J. Reynolds Tobacco Co., et al. v. Bonta, et al., No.

22A474, Supreme Court of the United States. Order

denying application for a writ of injunction pending

appeal entered December 12, 2023.

R.J. Reynolds Tobacco Co., et al. v. Bonta, et al., No.

23-55349, U.S. Court of Appeals for the Ninth Circuit.

Order summarily affirming judgment dismissing

complaint entered June 28, 2023.

vi

TABLE OF CONTENTS

Page

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

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

PARTIES TO THE PROCEEDING .......................... iv

RELATED PROCEEDINGS ...................................... v

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

OPINIONS BELOW ................................................... 6

JURISDICTION ......................................................... 6

STATUTORY PROVISIONS INVOLVED ................ 6

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

A.

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

B.

California Bans the Sale of

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

C.

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

REASONS FOR GRANTING THE WRIT ............... 13

I.

THE NINTH CIRCUIT’S HOLDING

CONFLICTS WITH THIS COURT’S

PRECEDENTS AND THE REASONING OF

DECISIONS FROM OTHER COURTS OF

APPEALS .......................................................... 13

A.

The Ninth Circuit’s conclusion

that the TCA’s preemption clause

does not preempt state sales

prohibitions contravenes this

Court’s precedents .............................. 14

vii

B.

The Ninth Circuit’s conclusion

that the TCA’s savings clause

saves state sales prohibitions

contravenes this Court’s

precedents ........................................... 21

C.

The Ninth Circuit’s decision

conflicts with the reasoning of

decisions from other courts of

appeals................................................. 28

II.

THE QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT ........................... 31

III.

THIS CASE PRESENTS AN IDEAL VEHICLE........ 35

CONCLUSION ......................................................... 36

APPENDIX A: Order of the United States

Court of Appeals for the Ninth Circuit

(June 28, 2023) .............................................. 1a

APPENDIX B: Order of the United States

District Court for the Southern District

of California (Mar. 15, 2023) ......................... 2a

APPENDIX C: Judgment of the United States

District Court for the Southern District

of California (Mar. 15, 2023) ....................... 13a

APPENDIX D: Order of the United States

Court of Appeals for the Ninth Circuit

(Jan. 27, 2023) ............................................. 16a

APPENDIX E: Order of the United States

Court of Appeals for the Ninth Circuit

(Nov. 28, 2022) ............................................. 17a

viii

APPENDIX F: Order of the United States

District Court for the Southern District

of California (Nov. 15, 2022) ....................... 18a

APPENDIX G: Plaintiffs’ Motion for

Preliminary Injunction and Injunction

Pending Appeal (Nov. 10, 2022) .................. 21a

APPENDIX H: Statutory Provisions

Food, Drug, and Cosmetic Act (FDCA)

FDCA § 301, 21 U.S.C. § 331 .................... 25a

FDCA § 900, 21 U.S.C. § 387 .................... 39a

FDCA § 901, 21 U.S.C. § 387a .................. 45a

FDCA § 902, 21 U.S.C. § 387b .................. 48a

FDCA § 907, 21 U.S.C. § 387g .................. 50a

FDCA § 910, 21 U.S.C. § 387j ................... 62a

FDCA § 916, 21 U.S.C. § 387p .................. 73a

Senate Bill 793, 2019-2020 Reg. Sess.

(Cal. 2020) ................................................. 75a

ix

TABLE OF AUTHORITIES

CASES

Page(s)

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

524 U.S. 214 (1998) .............................................. 23

Collins v. Yellen,

141 S. Ct. 1761 (2021) .......................................... 26

Corley v. United States,

556 U.S. 303 (2009) .............................................. 28

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

138 S. Ct. 1061 (2018) .......................................... 19

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

Mgmt. Dist.,

541 U.S. 246 (2004) .............................. 2, 15, 20, 22

Merck Sharp & Dohme Corp v. Albrecht,

138 S. Ct. 2705 (2018) .......................................... 35

Mkt. Co. v. Hoffman,

101 U.S. (11 Otto) 112 (1879) .............................. 22

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

138 S. Ct. 617 (2018) ............................................ 26

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

Providence,

731 F.3d 71 (1st Cir. 2013) ........ 4–5, 28, 29, 30, 34

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) ........................ 2, 17–18, 20–21

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

143 S. Ct. 541 (2022) ........................................ 5, 12

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

482 F. Supp. 3d 875 (D. Minn. 2020) ............ 16, 18

x

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

60 F.4th 1170 (8th Cir. 2023)

(per curiam) .......................... 4–5, 18, 28, 30–31, 34

R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles,

29 F.4th 542 (9th Cir. 2022) ............... 1–2, 4–6, 8,

10–15, 18, 19–21, 27–29, 31–36

R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles,

143 S. Ct. 979 (2023) .............................. 1, 5, 12, 32

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

566 U.S. 93 (2012) ................................................ 22

U.S. Smokeless Tobacco Mfg. v. City of New York,

708 F.3d 428 (2d Cir. 2013) ....... 4–5, 11, 28–30, 34

Wyeth v. Levine,

555 U.S. 555 (2009) .............................................. 35

Ysleta Del Sur Pueblo v. Texas,

142 S. Ct. 1929 (2022) .......................... 3, 21–28, 36

STATUTES

7 U.S.C. § 1311 .......................................................... 32

15 U.S.C. § 1334 ........................................................ 22

15 U.S.C. § 4406 ........................................................ 22

xi

Food, Drug, and Cosmetic Act (FDCA)

FDCA § 301, 21 U.S.C. § 331 ................................. 7

FDCA § 521, 21 U.S.C. § 360k ............................. 34

FDCA § 751, 21 U.S.C. § 379r ............................. 34

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

FDCA § 900, 21 U.S.C. § 387 ........................... 6, 17

FDCA § 902, 21 U.S.C. § 387b ......................... 7, 15

FDCA § 907, 21 U.S.C. § 387g ............ 3–4, 6–7, 15,

16, 33

FDCA § 916, 21 U.S.C. § 387p .................. 2–3, 6–8,

13–14, 21–22, 25–27, 30

21 U.S.C. § 451 .......................................................... 34

21 U.S.C. § 467e ........................................................ 34

21 U.S.C. § 678 .......................................................... 34

28 U.S.C. § 1254 .......................................................... 6

42 U.S.C. § 7543 .................................................. 15, 34

46 U.S.C. § 4306 ........................................................ 35

49 U.S.C. § 30103 ...................................................... 35

Family Smoking Prevention and

Tobacco Control Act, Pub. L. No.

111-31, 123 Stat. 1776 (2009) .......................... 6, 32

Ysleta del Sur Pueblo and Alabama and

Coushatta Indian Tribes of Texas

Restoration Act, Pub. L. No. 100-89,

101 Stat. 666 (1987) ............................................. 23

Cal. Health & Safety Code § 104559.5 ............. 8–9, 18

430 Ill. Comp. Stat. 40/10 ......................................... 33

xii

410 Ill. Comp. Stat. 86/20 ......................................... 33

Mass. Gen. Laws ch. 270 § 27 ................................... 33

Me. Stat. tit. 22, § 1560-B ......................................... 33

Mich. Comp. Laws § 722.642b .................................. 33

N.Y. Gen. Bus. Law § 399-gg .................................... 33

LEGISLATIVE AND REGULATORY MATERIALS

Assemb. B. 1690,

2021–2022 Reg. Sess. (Cal. 2022) ........................ 33

21 C.F.R. § 1162.1 ............................................... 15, 17

FDA Decision Summary PM0000011

(Nov. 10, 2015) ....................................................... 9

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

Smokeless Tobacco Products

(Oct. 22, 2019) ........................................................ 9

FDA, Illicit Trade in Tobacco Products

after Implementation of an FDA

Product Standard (Mar. 15, 2018) ...................... 17

940 Mass. Code Regs. 21.05 ...................................... 33

SB 793,

2019–2020 Reg. Sess. (Cal. 2020) .................. 10, 30

SB 1278,

2021–2022 Reg. Sess. (N.Y. 2021) ....................... 33

Utah Admin. Code r. R384-415-5 ............................. 33

OTHER AUTHORITIES

Black’s Law Dictionary (6th ed. 1990)...................... 23

xiii

Webster’s Third New Int’l Dictionary

(1986) .................................................................... 23

1

INTRODUCTION

The federal Tobacco Control Act (“TCA”) expressly

preempts “any” state law that is “different from, or in

addition to” federal “tobacco product standards”

(including standards on permissible flavors). And,

after expressly distinguishing between state laws

“prohibiting” the sale of tobacco products and state

laws “relating to” such sales, the TCA in its savings

clause exempts from preemption only the latter

category. The result is a coherent and sensible

preemption regime, in which states retain broad

authority to regulate the sale of tobacco products—by,

for example, raising the minimum purchase age,

restricting sales to particular times and locations, and

enforcing licensing regimes—but lack the ability to

completely prohibit the sale of tobacco products for

failing to meet state “tobacco product standards.”

Nonetheless, the court below upheld California’s

ban on the retail sale of “flavored tobacco products” on

the ground (set forth in binding circuit precedent) that

the TCA does not preempt state laws prohibiting the

sale of products that fail to comply with a stateimposed product standard. Pet.App.1a (citing R.J.

Reynolds Tobacco Co. v. County of Los Angeles, 29

F.4th 542 (9th Cir. 2022) (“Los Angeles”), cert. denied

143 S. Ct. 979 (2023)). But Los Angeles is manifestly

wrong and directly conflicts with two of this Court’s

seminal preemption decisions. As Judge Nelson’s Los

Angeles dissent explained, this Court has “twice

reversed” the Ninth Circuit for committing the very

same error—allowing states to use sales bans to evade

express federal preemption of state standards. Id. at

562 (Nelson, J., dissenting) (citing Engine Mfrs.

Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246

2

(2004); and Nat’l Meat Ass’n v. Harris, 565 U.S. 452

(2012)).

The Ninth Circuit’s interpretation of the TCA also

conflicts with other decisions from this Court, is

inconsistent with the reasoning of other circuits, and

implicates important issues. And this case presents

an ideal vehicle.

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” state

requirements that impose additional or different

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

(emphasis added). The Ninth Circuit, however, has

held that “tobacco product standards” are limited to

requirements dictating “how [a] product must be

produced.” Los Angeles, 29 F.4th at 556. The court

thus concluded 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 states 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 state could

always defeat it by simply framing its law as a ban on

the “sale” of a product that does not meet the state’s

preferred standard. Nat’l Meat, 565 U.S. at 464.

As in Engine Manufacturers and National Meat, the

statutory text forecloses this nonsensical result. The

TCA makes clear that a flavor ban (such as

California’s) is a paradigmatic “tobacco product

3

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 California’s standard is broader than the

federal one, it is within the Act’s preemption clause.

Id. § 387p(a)(2)(A).

The Ninth Circuit’s alternative holding, that the

TCA’s savings clause allows states to prohibit the sale

of products that do not conform to their 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

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 states to circumvent

the preemption clause by simply framing their laws as

prohibitions of the sale of products that don’t meet

their preferred requirements.

4

For these reasons, the First and Second Circuits

carefully distinguished total bans like those adopted

by California. Those courts both upheld restrictions

on the sale of flavored tobacco products but did so

because, unlike SB793, 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. v. City

of New York, 708 F.3d 428 (2d Cir. 2013). The Ninth

Circuit’s decision upholding an absolute prohibition

conflicts with this reasoning. It is also in tension with

the Eighth Circuit, which upheld a flavor ban after

applying the so-called “presumption against

preemption,” which the Ninth Circuit expressly

disavowed. See R.J. Reynolds Tobacco Co. v. City of

Edina, 60 F.4th 1170, 1176–77 (8th Cir. 2023) (per

curiam); Los Angeles, 29 F.4th at 553 n.6.

Second, this issue is exceptionally important.

California’s ban cuts off one of the Nation’s largest

markets for flavored tobacco products. For example,

the law prohibits the sale of menthol cigarettes, which

constitute approximately one-third of the State’s

cigarette market.

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.

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

5

Ninth Circuit’s rule, 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 many

industries. But the opinion below is a roadmap for

circumventing preemption provisions relating to such

product standards. That would undermine Congress’s

efforts to establish uniform standards for national

industries and would significantly increase the costs

of doing business.

This case is also an ideal vehicle to resolve the

question presented. Opinions from four courts of

appeals have aired the issues presented by this case

and revealed a disagreement only this Court can

answer. See Edina, 60 F.4th 1170; Los Angeles, 29

F.4th 547; NATO, 731 F.3d 71; U.S. Smokeless, 708

F.3d 428; see also Los Angeles, 29 F.4th at 561 (Nelson,

J. dissenting). This case also cleanly presents the core

legal question, with no line-drawing problems. And

the case comes to this Court on final judgment.

Finally, certiorari is warranted notwithstanding

this Court’s previous denials of review of the question

presented. See Los Angeles, 143 S. Ct. 979 (denying

certiorari); R.J. Reynolds Tobacco Co. v. Bonta, 143 S.

Ct. 541 (2022) (denying application for injunction and,

in the alternative, certiorari). This case comes to this

Court, not in an emergency posture as it did late last

year, Bonta, 143 S. Ct. 541, but rather after final

6

judgment. Additionally, the Eighth Circuit has since

addressed the question, adding to the circuits opining

on the issue. Moreover, California’s statewide ban has

far greater impact on manufacturers and consumers

than the local ban in Los Angeles, which applied only

in the unincorporated parts of a single county.

OPINIONS BELOW

The Ninth Circuit’s judgment is not reported but is

reproduced at Pet.App.1a. The district court’s order is

not reported but is available at 2023 WL 2534620 and

reproduced at Pet.App.2a–15a. The Ninth Circuit’s

prior binding opinion, Los Angeles, on which the

judgment below relied, is reported at 29 F.4th 542.

JURISDICTION

The Ninth Circuit entered judgment on June 28,

2023. Pet.App.1a. No petition for rehearing was filed.

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.25a–85a.

STATEMENT OF THE CASE

A. Legal Background

Long before California 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, Pub. L. No. 11131, 123 Stat. 1776 (2009) (TCA). The Act granted FDA

primary authority to regulate tobacco products. See 21

U.S.C. §§ 387–387s.

7

In the TCA section addressing flavors in tobacco

products (entitled “Tobacco product standards”),

Congress created a “[t]obacco product standard[]”

prohibiting characterizing flavors in cigarettes except

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 enforced that

standard through a sales ban: 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:

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,

[the

TCA’s]

requirements,”

including

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

tobacco products by individuals of any age.” Id.

§ 387p(a)(1) (emphasis added). But while the

preservation of that 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

8

clause applies “[e]xcept

preemption clause]”).

as

provided

in

[the

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)

(emphasis added). It thus preempts both

requirements “relating to” and “prohibiting” tobacco

product sales if they differ from federal tobacco

product standards.

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—state power to enact “requirements …

prohibiting the sale” of those products. Compare id.,

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

B. California Bans the Sale of Flavored

Tobacco Products

There has been a surge in states and localities

restricting or completely banning the sale of flavored

tobacco products. See Los Angeles, 29 F.4th at 551.

The County of Los Angeles joined that trend in 2019.

And California followed suit in 2020. California’s law,

SB793, provides that tobacco retailers “shall not

sell … a flavored tobacco product” in the state. Cal.

Health & Safety Code § 104559.5(b)(1).

9

A “[f]lavored tobacco product” includes “any tobacco

product that contains a constituent that imparts a

characterizing flavor.” Id. § 104559.5(a)(4). A

“[c]onstituent,” in turn, is defined as “any ingredient,

substance, chemical, or compound … that is added by

the manufacturer … during the processing,

manufacture, or packing of the tobacco product.” Id.

§ 104559.5(a)(2) (emphasis added). And a “[t]obacco

product” is “[a] product containing, made, or derived

from tobacco or nicotine that is intended for human

consumption,” including “cigarettes,” “chewing

tobacco,” “snuff,” and electronic nicotine systems. Id.

§ 104495(a)(8)(A)(i)–(ii).

California thus bans retailers from selling

“[f]lavored tobacco product[s],” including menthol

cigarettes. In fact, SB793 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

them to be marketed as presenting lower health risks

than cigarettes. 2

C. Procedural History

Petitioners R.J. Reynolds Tobacco Company, R.J.

Reynolds Vapor Company, American Snuff Company,

LLC, Santa Fe Natural Tobacco Company, Inc., and

Modoral Brands Inc. manufacture and distribute

various tobacco products for sale in California,

including menthol-flavored cigarettes. Petitioner

1 E.g., FDA Decision Summary PM0000011 (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)

(authorizing

marketing

of

flavored

snus

products),

https://tinyurl.com/y6ruvbdz.

10

Neighborhood Market Association, Inc. is a

California-based non-profit trade association, with

members who sell flavored tobacco products. Id.

Petitioner Morija, LLC is a San Diego-based tobacco

retailer that sells electronic smoking devices and eliquid tobacco products. Id. Because all are subject to

California’s ban, they collectively filed suit,

challenging SB793. And they sought a preliminary

injunction and injunction pending appeal because the

ban was set to go into effect within weeks. Id.

Nevertheless, Plaintiffs recognized that their expresspreemption claim, which was the basis for the relief

sought, was foreclosed in the district court (and the

Ninth Circuit) by Los Angeles. Id.

a. Like California’s SB793, Los Angeles’s Ordinance

banned the sale of flavored tobacco products. Relevant

to this case, Reynolds and certain affiliates

(collectively, “Reynolds”) sued the County, arguing

that the TCA preempted the Ordinance.

A divided panel of the Ninth Circuit upheld the

Ordinance. See Los Angeles, 29 F.4th 542. 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. Id. at 556. And because the Ordinance

“merely” bans the sale of flavored tobacco products,

the majority concluded 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.” Id. at 554.

The majority alternatively held that the TCA’s

savings clause saved the Ordinance. Id. at 558. “A ban

11

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.’” Id. (quoting 21

U.S.C. § 387p(a)(2)(B)). The majority refused to give

effect to the statutory distinction between

requirements “relating to … sales” and those

“prohibiting sales.” 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 began with this Court’s

decisions in Engine Manufacturers and National

Meat, which “[both] … reversed [the Ninth Circuit] for

interpreting an express preemption clause to allow

states and municipalities to defeat its entire purpose

with a sales ban.” Id. at 561 (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.” Id. at

563. Those cases thus require “hold[ing] that Los

Angeles’s ban is covered by the preemption clause.”

Id. 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.” Id. at 564.

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.” Id.

12

Instead, the preservation clause clarifies that no other

TCA section has express preemptive effect and that

federal agencies and Indian tribes are unaffected by

the preemption clause. Id. at 565. Finally, Judge

Nelson concluded that the savings clause does not

save the County’s ban because it saves only age-based

requirements. Id.

The plaintiffs filed a petition for writ of certiorari.

No. 22-338 (U.S.). After calling for a response, this

Court denied the petition. 143 S. Ct. 979.

b. Petitioners challenged SB793 in court, arguing

that SB793 is preempted. Petitioners moved for a

preliminary injunction and an injunction pending

appeal, but conceded that the Ninth Circuit’s opinion

in Los Angeles required denial of injunctive relief,

while noting that they preserved their arguments for

appeal. Pet.App.22a23a. The district court denied

Petitioners’ motion for preliminary injunction.

Pet.App.18a–20a. The Ninth Circuit denied a motion

for an injunction pending appeal and later (on

Petitioners’ motion to further facilitate this Court’s

review) summarily affirmed the district court.

Pet.App.16a. Petitioners filed an emergency

application for relief from this Court, which was

denied. 143 S. Ct. 541 (2022).

Respondents then filed a motion to dismiss.

Petitioners again acknowledged that their express

preemption claim was foreclosed by controlling Ninth

Circuit precedent while preserving their arguments

for appeal. The court dismissed the complaint.

Pet.App.2a, 13a. Petitioners appealed and (to

facilitate this Court’s review) moved for summary

affirmance of the district court’s dismissal, while

13

preserving their express preemption claim for this

Court’s review. 3

The Ninth Circuit summarily affirmed the district

court’s dismissal on June 28, 2023. Pet.App.1a. This

petition follows.

I.

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT’S HOLDING CONFLICTS WITH

THIS COURT’S PRECEDENTS AND THE REASONING

OF DECISIONS FROM OTHER COURTS OF APPEALS

Under the TCA, states 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

the state’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). Despite that clause, the Ninth Circuit

has held that a state can evade preemption by simply

framing its law as a ban on the sale of products that

do not meet its standard.

That holding directly conflicts with this Court’s

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

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

Court has twice reversed [the Ninth Circuit] for

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

California regulations expressly preempted.” 29 F.4th

3 Petitioners also brought a dormant Commerce Clause claim.

Petitioners withdrew the claim on appeal.

14

at 562 (Nelson, J., dissenting) (citing Engine Mfrs.,

541 U.S. 246; and Nat’l Meat, 565 U.S. 452). The

Ninth Circuit’s precedent is also inconsistent with the

reasoning of 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

state

sales

prohibitions

contravenes this Court’s precedents

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

state “requirement which is different from, or in

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

U.S.C.

§ 387p(a)(2)(A)

(emphasis

added).

Nonetheless, Ninth Circuit precedent holds that as

long as a state law enforcing such a requirement is

framed as a sales ban, the state 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.” Los Angeles, 29 F.4th at 556 (emphasis

added). That, in the Ninth Circuit’s view, was

dispositive, because “tobacco product standards” do

not include sales prohibitions. The same reasoning

applies here: Because California “merely” bans the

sale of flavored tobacco products, it is not preempted.

The Ninth Circuit’s precedent conflicts with this

Court’s repeated admonition that states cannot evade

preemption by simply enforcing their standards at the

point of sale. Engine Manufacturers rejected the

Ninth Circuit’s decision to impose such an atextual

limitation on a preemption clause. There, California

prohibited the purchase of cars that did not meet local

emission standards. 541 U.S. at 248–49. The Clean

15

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).

As in Los Angeles, 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 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. Both enforce a standard

(no characterizing flavors in tobacco products).

Indeed, like California’s law 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). Such enforcement

mechanisms, however, do not change the fact that the

sales prohibitions are enforcing product standards.

16

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 its production. In other

words, a product standard governs what may be

produced, not just how it may be produced.

Indeed, the TCA makes 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 first of which is a ban

on characterizing flavors in 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), 387g(a)(3)(A).

The statute also expressly describes “tobacco

product standard[s]” as encompassing “provisions

respecting the construction, components, ingredients,

additives, constituents, … and properties of the

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

added)—which plainly covers regulating flavors. See,

e.g., R.J. Reynolds Tobacco Co. v. City of Edina, 482

17

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.”), aff’d, 60 F.4th 1170 (8th Cir. 2023);

21 U.S.C. § 387(1) (defining “additive[s]” to include

“substances intended for use as a flavoring”).

And lest there be any doubt, FDA too has repeatedly

concluded that restrictions on flavors—including

sales bans—are tobacco product standards. See, e.g.,

21 C.F.R. § 1162.1(b) (proposed 2022) (proposing to

ban the sale of menthol cigarettes using a “[p]roduct

[s]tandard”); 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)).

Thus, the Ninth Circuit’s artificial limitation of

“tobacco product standards” not only conflicts with

Engine Manufacturers but also with the TCA’s text.

2. Even if tobacco product standards were somehow

limited to production mandates (they are not), the

Ninth Circuit’s conclusion 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, that

18

provision was textually limited to production

mandates. And like here, 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], [SB793] 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 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), aff’d 60

F.4th 1170 (8th Cir. 2023). In that way, California’s

ban does regulate how tobacco products must be

produced. See id. 4

3. The Ninth Circuit’s attempt to distinguish the

TCA from the statutes in Engine Manufacturers and

National Meat is unavailing. According to its

4 Moreover, SB793 is directed “at the manufacturing stage.”

29 F.4th at 555. SB793 bans the sale of “any tobacco product that

contains a constituent that imparts a characterizing flavor.”

SB793, § 104559.5(a)(4) (emphasis added). And SB793 defines a

“[c]onstituent” as “any ingredient … that is added by the

manufacturer … during the processing, manufacture, or packing

of the tobacco product.” Id. § 104559.5(a)(2) (emphasis added).

19

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

the difference. Los Angeles, 29 F.4th at 556. Because

that clause preserves local authority to enact laws

“‘relating to or prohibiting the sale’” of tobacco

products, the court concluded that the preemption

clause must be limited to regulations “dictating how

th[e] product must be produced.” Id. (quoting 21

U.S.C. § 387p(a)(1)). Otherwise, the preservation

clause would be a “nullity.” Id. at 554.

That gets things exactly backwards. “By its terms,

the preservation clause does not apply to the

preemption clause at all.” Id. at 564 (Nelson, J.,

dissenting). Rather, the preservation clause is

explicitly subject to the preemption clause. It says:

“[E]xcept 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.” Los Angeles, 29 F.4th at 556. The

preservation clause thus in no way distinguishes the

TCA from the statutes in Engine Manufacturers and

National Meat.

Nor does Petitioners’ interpretation nullify the

preservation clause, contrary to the Ninth Circuit’s

suggestion. That clause serves other critical functions,

which do not “affect the preemption clause.” Id. at 564

(Nelson, J., dissenting).

20

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;

the preservation clause clarifies that they are free to

set their own tobacco product standards. See id. at

565.

Second, the preservation clause clarifies that other

TCA sections do not have express preemptive effect.

Id. at 564. Specifically, 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 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 decision below directly conflicts with

Engine Manufacturer’s admonition that a “standard”

applies to the final product and that states therefore

cannot circumvent preemption by targeting sales. See

541 U.S. at 254. And it conflicts with National Meat’s

reaffirmation that allowing a state to avoid

preemption simply by framing its product standard as

a “ban on the sale” of nonconforming products would

“make a mockery of the … preemption provision.” See

565 U.S. at 464.

21

B. The Ninth Circuit’s conclusion that the

TCA’s savings clause saves state sales

prohibitions contravenes this Court’s

precedents

The Ninth Circuit alternatively held that the

savings clause saves state and local sales prohibitions.

But the savings clause saves “requirements relating

to … sale[s],” not “requirements prohibiting sales.”

See 21 U.S.C. § 387p(a)(2)(A). The Ninth Circuit’s

interpretation of the savings clause nullifies that

distinction and, in so doing, renders the preemption

clause a dead letter, once again contravening 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 this Court’s recent decision in Ysleta,

142 S. Ct. at 1938.

1. The decision below, which was bound by Los

Angeles, held that even if a sales prohibition fell

within the TCA’s preemption clause, it would

nonetheless be saved by the savings clause, which

saves requirements “relating to the sale” of tobacco

products. Pet.App.74a; see also Los Angeles, 29 F.4th

at 552. 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 that precedent, a state 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

22

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. Throughout the TCA, Congress

intended to preempt not just state tobacco product

standards but also state 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 state 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 state can establish its own

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

label, even if FDA has mandated a different one. 5 All

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

not meet a state’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 cannot use sales bans to circumvent a

preemption clause.

2. The Ninth Circuit’s conclusion also directly

conflicts with this Court’s recent decision in Ysleta,

142 S. Ct. 1938. 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). And one clause cannot

5 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.

23

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. 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 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 said the Act was 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).

“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

New Int’l Dictionary 1813 (1986)). 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

24

Inc., 582 U.S. 79, 86 (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.

The Court also emphasized that 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.

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 more 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

25

directed to those who make the laws than those

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

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

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 preemption clause’s

exception.

The preemption clause, then, takes away from state

and local governments (but not others) part of the

broad power the preservation clause confers. Under

the preemption clause, state and local governments

cannot enact “any requirement which is different from,

26

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 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

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); see 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 state

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

27

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

Id.; see also supra Part I. (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,” Los Angeles, 29

F.4th at 559, 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 …

under which one can craft an absurd argument.” Los

Angeles, 29 F.4th at 566 (Nelson, J., dissenting). And

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

at all, because SB793 bans the sale of flavored tobacco

products. See infra Part III.

3. As Judge Nelson concluded, the savings clause

also does not apply for a second reason. “The savings

clause only saves for states the authority to enact age

requirements.” Los Angeles, 29 F.4th at 565 (Nelson,

J., dissenting). This 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 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. Los

Angeles, 29 F.4th at 565 (Nelson, J., dissenting). That

28

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).

***

For these reasons, certiorari is warranted. The

Ninth’s Circuit’s approval of California’s SB793 is

contrary to this Court’s decisions in Engine

Manufacturers, National Meat, and Ysleta.

C. The Ninth Circuit’s decision conflicts with

the reasoning of decisions from other

courts of appeals

The decision below, which relies on Los Angeles,

conflicts with the reasoning of decisions of the First,

Second, and Eighth Circuits. See NATO, 731 F.3d 71;

U.S. Smokeless, 708 F.3d 428; Edina, 60 F.4th 1170;

see also Los Angeles, 29 F.4th at 564 (Nelson, J.

dissenting) (noting that Los Angeles conflicts with

U.S. Smokeless’s reasoning). In contrast to the Ninth

Circuit, the First and Second Circuits upheld local

restrictions on flavored tobacco products based on

reasoning that would not permit a blanket

prohibition. And the Eighth Circuit concluded the

savings clause saved a local flavor ban only because

the “presumption against preemption” applied to the

TCA, something the Ninth Circuit disavowed.

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

New York City’s 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

29

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 464). In other words, as Judge Nelson opined, the

Second Circuit “did adopt a version of the [Ninth

Circuit’s] sales vs. manufacturing distinction,” but “it

was careful to avoid implying that a complete sales

ban would be permissible.” Los Angeles, 29 F.4th at

564 (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.

There, 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

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

30

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

issue in National Meat. Id.

By contrast, the binding precedent below upholds a

blanket prohibition. Like Los Angeles’s Ordinance,

SB793 is different in kind from those upheld in U.S.

Smokeless and NATO. Under SB793, consumers

cannot purchase flavored tobacco products anywhere

in California. There is no exception for tobacco bars

(as in U.S. Smokeless), smoking bars (as in NATO), or

any other location. Thus, the Ninth Circuit’s decision

upholding a blanket ban conflicts with the rationale of

these First and Second Circuit decisions, under which

such a prohibition would be preempted.

2. The decision below also conflicts with the Eighth

Circuit’s reasoning. The Eighth Circuit concluded that

the TCA’s savings clause saved a local flavor ban

because the “presumption against preemption”

applies to the TCA. Specifically, that court found “two

plausible readings of the Savings Clause that compel

two different outcomes.” Edina, 60 F.4th at 1176. The

savings clause says the preemption clause “does not

apply to requirements relating to the sale” of tobacco.

21 U.S.C. § 387p(a)(2)(B). The court reasoned that one

reading of “does not apply” is that “if something falls

under the Savings Clause, it cannot also fall under the

Preemption Clause.” Edina, 60 F.4th at 1175. So the

question under that reading is whether the local law

is more like a requirement relating to tobacco product

standards (preemption clause) or a requirement

relating to sales (savings clause). The second reading

“is that ‘does not apply’ means the Savings Clause

voids the effect of the Preemption Clause. That is, if a

rule falls into the Preemption Clause ‘bucket’ but also

relates to sales, it is essentially scooped out of the

31

Preemption Clause bucket and placed into the

Savings Clause bucket.” Id.

The court then claimed the only way to choose

between these readings was to apply a presumption

against preemption. “When addressing express or

implied preemption we begin with the assumption

that the historic police powers of the States are not to

be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Id. at 1176.

And since “[t]he TCA is ambiguous and implicates

traditional state police powers, we must accept the

reading of the Savings Clause that disfavors

preemption.” Id. at 1177.

But this is in direct contrast to Los Angeles, which,

after discussing Supreme Court precedent on the

presumption issue, held that “our focus is on the

meaning of the TCA’s text without any presumptive

thumb on the scale.” 29 F.4th at 553 n.6. Thus, the

controlling decision below contrasts with the

reasoning of the Eighth Circuit as well.

II. THE QUESTION PRESENTED IS EXCEPTIONALLY

IMPORTANT

The issue presented also goes beyond whether

states and localities can ban the sale of flavored

tobacco products under the TCA.

First, California has shut the doors to one of the

Nation’s largest markets for flavored tobacco products

and thereby banned a product (menthol cigarettes)

that has been lawfully sold for nearly a century. Not

only that, as amici curiae explained to this Court in

Los Angeles, the economic impact of flavor bans,

especially at the statewide level, are catastrophic to

small retailers and will also harm manufacturers. See,

32

e.g., Brief for E-Cigarette Businesses and Trade

Associations as Amici Curiae Supporting Petitioners,

Los Angeles, 143 S. Ct. 979 (2023) (No. 22-338). Just

looking at the vapor industry, California’s ban could

result in $1.4 billion in lost economic output and cost

thousands of jobs. Id. at 13.

It is no surprise then that 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 7 U.S.C.

§ 1311 (“The marketing of tobacco constitutes one of

the greatest basic industries of the United States with

ramifying activities which directly affect … commerce

at every point, and stable conditions therein are

necessary ….”), repealed by Pub. L. No. 108-357 (Oct.

22, 2004). And that is precisely why Congress enacted

the TCA, which includes a comprehensive scheme to

regulate tobacco products nationwide. See 21 U.S.C.

§ 387 note. 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 [FDA] with the authority to regulate

tobacco products and the advertising and promotion of

such products. The benefits to the American people

from enacting such legislation would be significant in

human and economic terms.”).

The fact that this case involves one of the Nation’s

largest markets distinguishes it from Los Angeles,

where this Court denied certiorari. See 143 S. Ct. 979.

That ban’s economic effect—limited to the

unincorporated parts of Los Angeles County—paled in

comparison to California’s. This is all the more reason

33

that this Court needs to settle the meaning of the

TCA’s preemption provisions now. 6

Second, 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 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. 410 Ill. Comp. Stat.

86/20. And numerous states regulate the type of

packaging that manufacturers can use for their

e‑cigarettes. 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).

6

Moreover, hundreds of jurisdictions have enacted

restrictions on flavored tobacco products. Los Angeles, 29 F.4th

at 551.

34

The Ninth Circuit is not the first appeals court to

decide this issue. The issue has reached four federal

courts of appeals, see Edina, 60 F.4th 1170; Los

Angeles, 29 F.4th 542; NATO, 731 F.3d 71; U.S.

Smokeless, 708 F.3d 428. And it is sure to continue, as

the Ninth Circuit recognized. Los Angeles, 29 F.4th at

551.

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 other

tobacco product standards. The Court should step in

to uphold Congress’s decision to preempt such

regulatory chaos.

Third, the problem is 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

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., id. § 678 (poultry

products); id. § 379r (nonprescription drugs); id.

§ 360k (medical devices); 42 U.S.C. § 7543(a) (vehicle

35

emissions); 46 U.S.C. § 4306 (recreational vessels); 49

U.S.C. § 30103(b)(1) (motor vehicles).

But under the Ninth Circuit’s rule, businesses

cannot rely on Congress’s words. All a state 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

Code.

The question presented is thus important not only

for one of the Nation’s largest industries, but for

numerous others too.

III. THIS CASE PRESENTS AN IDEAL VEHICLE

This is an ideal vehicle for numerous reasons. First,

further percolation is unnecessary. There have now

been four published circuit court opinions (and a

dissent) on the issue, including one issued after this

Court’s denial of certiorari in Los Angeles. 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 circuit

disagreement, this Court routinely grants review in

splitless preemption cases given preemption issues’

“importance.” Wyeth v. Levine, 555 U.S. 555, 563

(2009) (noting that certiorari was granted despite no

split); see, e.g., Merck Sharp & Dohme Corp v.

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

same situation).

36

Second, this issue was squarely passed upon below.

And 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 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 regarding

whether SB793 is a “prohibition.” Some restrictions

might present difficult questions regarding whether

they are requirements “relating to” the sale of tobacco

products or “prohibiting” their sale. But SB793 does

not: it is a blanket ban on the covered products—a

paradigmatic prohibition. So the Ninth Circuit’s

supposed administrability problem is not presented

here. Los Angeles, 29 F.4th at 559; 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.

37

September 1, 2023

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