Amicus Curiae Brief — R.J. Reynolds Tobacco Company, et al., Petitioners v. Rob Bonta, Attorney General of California, et al.

No. 23-207

IN THE

Supreme Court of the United States

___________

R.J. REYNOLDS T OBACCO COMPANY; R.J. REYNOLDS

VAPOR COMPANY; AMERICAN S NUFF COMPANY LLC;

SANTA FE NATURAL T OBACCO COMPANY, INC.;

MODORAL BRANDS I NC.; NEIGHBORHOOD MARKET

ASSOCIATION, I NC.; 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

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

___________

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

September 29, 2023

candrews@wlf.org

QUESTION PRESENTED

Whether the Tobacco Control Act expressly

preempts state and local laws prohibiting the sale of

flavored tobacco products.

iii

TABLE OF CONTENTS

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

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

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

SUMMARY OF ARGUMENT.................................. 5

ARGUMENT ............................................................ 7

I.

THE DECISION BELOW CONTRAVENES

THIS COURT’S PREEMPTION PRECEDENTS ....... 7

II.

THE NINTH CIRCUIT’S FLAWED TCA CONSTRUCTION FLOUTS THIS COURT’S SAVING-CLAUSE JURISPRUDENCE ....................... 10

III.

THIS IS AN IMPORTANT QUESTION THAT

MERITS REVIEW ............................................ 15

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

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

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

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

Buckman Co. v. Plaintiffs’ Legal Comm.,

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

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

Mgmt. Dist.,

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

Epic Sys. v. Lewis,

138 S. Ct. 1612 (2018) ................................... 10, 11

Geier v. Am. Honda Motor Co.,

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

Home Depot USA, Inc. v. Jackson,

139 S. Ct. 1743, 1748 (2019) ............................... 11

Merck Sharp & Dohme Corp. v. Albrecht,

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

Morales v. Trans World Airlines, Inc.,

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

Nat’l Meat Ass’n v. Harris,

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

RadLAX Gateway Hotel v. Amalgamated Bank,

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

Russello v. United States,

464 U.S. 16, 23 (1983) ......................................... 11

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

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

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Viking River Cruises, Inc. v. Moriana,

142 S. Ct. 1906 (2022) ........................................... 1

STATUTES:

The Family Smoking Prevention and Tobacco

Control Act, Pub. L. No. 111-31, 123 Stat. 1776

(2009) .......................................................................

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Communications Act of 1934

47 U.S.C. § 414 ................................................12, 13

OTHER AUTHORITIES:

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

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

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

individual rights, limited government, and the rule of

law. It often appears as an amicus in important

preemption cases to help ensure that federal law operates uniformly and efficiently, as Congress intended. See, e.g., Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022); Merck Sharp & Dohme

Corp. v. Albrecht, 139 S. Ct. 1668 (2019).

Federal law expressly prohibits States and localities from banning the sale of a tobacco product for

failing to meet state or local standards that differ

from the federal standard. Yet the Ninth Circuit, adhering to deeply flawed circuit precedent, permitted

the State of California to do just that. WLF fears that

the Ninth Circuit’s flawed preemption precedent, if

allowed to stand, will severely undercut Congress’s

ability to maintain uniform, nationwide product

standards in regulated industries.

STATEMENT

Tobacco is among the most federally regulated

products in America. For decades Congress has

closely controlled the interstate marketing and use of

tobacco products—from eliminating smoking on public transportation and setting a minimum age for

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

one, other than WLF and its counsel, contributed money for

preparing or submitting this brief. All parties received timely

notice of WLF’s intent to file this brief.

2

tobacco sales to banning tobacco-product ads on television and radio.

In 2009, Congress authorized the Food and

Drug Administration to regulate tobacco products in

the Family Smoking Prevention and Tobacco Control

Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (TCA).

Among other things, the TCA prohibits cigarette flavors other than tobacco and menthol, 21 U.S.C.

§ 387g(a)(1)(A); bans the sale of “adulterated” tobacco

products that don’t conform to this federal standard,

id. §§ 331(a), (c), 387b(5); and authorizes the FDA exclusively to decide whether to extend the federal ban

to other tobacco products or flavors, id. § 387g(a).

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

FDA must weigh the relative health effects of tobacco

products by setting “tobacco product standards,” id.

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

(e)(1); gathering and studying data to take further

“action” on “menthol or any artificial or natural flavor,” id. § 387g(a)(1)(A); and adopting other tobacco

product standards if the agency determines, after

weighing “the risks and benefits to the population as

a whole,” that a revised standard “is appropriate for

the protection of the public health,” id.

§ 387g(a)(3)(A), (B).

Most relevant here, the TCA clarifies the role

that States and localities may play in regulating tobacco. First, the TCA preempts “any” state or local requirement that imposes additional or different “tobacco product standards.” Id. § 387p(a)(2)(A). Second,

“except” for state and local laws expressly preempted

3

by the preemption clause (e.g., laws imposing different tobacco product standards from the federal standard), the TCA otherwise preserves the authority of

States, localities, federal agencies, the Armed Forces,

and Indian tribes to enact “more stringent” measures

“relating to or prohibiting the sale * * * of tobacco

products by individuals of any age.” Id. § 387p(a)(1).

Because it is subject to the preemption clause, the

preservation clause does not preserve state and local

regulation of tobacco flavors. Third, the TCA saves

from preemption state and local requirements “relating to the sale” of tobacco products to “individuals of

any age” or “relating to fire safety standards.” Id.

§ 387p(a)(2)(B).

In 2020, California enacted SB793, which bans

the sale of flavored tobacco products within California. See Cal. Health & Safety Code § 104559.5(b)(1)

(providing that tobacco retailers “shall not sell * * * a

flavored tobacco product” in the State). Petitioners—

tobacco manufacturers, distributors, and retailers—

collectively sued the California Attorney General and

the San Diego County District Attorney, contending

that the TCA preempts California’s flavor ban because it imposes a tobacco product standard that is

different from the federal standard.

Although preserving their argument for appeal, petitioners conceded in the district court that

their express-preemption claim was foreclosed by R.J.

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

which a panel majority declared that the TCA’s tobacco product standards govern only how a “product

must be produced.” 29 F.4th 542, 556 (9th Cir. 2022).

According to that majority, because the County’s flavor ban targeted sales rather than production, it

4

escaped the TCA’s preemption clause. Id. Alternatively, the Los Angeles majority held that the TCA’s

saving clause saved the County’s flavor ban from

preemption. In the majority’s view, the County’s flavor ban was no more than a “requirement [] relating

to the sale * * * of[] tobacco products [to] individuals

of any age.” Id. at 548 (quoting 21 U.S.C.

§ 387p(a)(2)(B)). The court saw no statutory significance in the TCA’s distinction between requirements

“relating to” sales in the saving clause and those “prohibiting” sales in the preservation clause.

Judge Nelson dissented from that decision. Relying on this Court’s holdings in National Meat Ass’n

v. Harris, 565 U.S. 452 (2012), and Engine Manufacturers Ass’n v. South Coast Air Quality Management

District, 541 U.S. 246 (2004), he explained that States

and localities cannot escape preemption “by disguising [their] regulation as a sales ban.” Los Angeles, 29

F.4th at 563. Because the County’s ban fell within the

TCA’s preemption clause and was neither preserved

nor saved, he would have held that it was expressly

preempted. Id. at 566–57.

Given Los Angeles’s sweeping holding, the district court dismissed petitioners’ preemption suit. Pet.

App. 2a, 13a. Petitioners appealed. While seeking

summary affirmance of the dismissal to facilitate this

Court’s review, petitioners preserved their express

preemption claim. The Ninth Circuit summarily affirmed. Pet App. 1a.

5

SUMMARY OF ARGUMENT

When the FDA approves a prescription drug as

safe and effective for its intended use, nobody asks the

California State Legislature to check the science. Congress would never permit the California State Assembly to convene a meeting of its Committee on Health,

watch tutorials on pharmacology and biochemistry,

attempt its own clinical trials, second-guess the

FDA’s weighing of the drug’s therapeutic costs and

benefits, “improve” the drug with a redesign, and then

enact a statewide ban on the sale of the FDA-approved design.

Just as it would not let local politicians tinker

with the design of a federally approved prescription

drug, Congress would not let them overhaul the product standards for one of the most highly regulated

FDA-authorized products in America. Yet the Ninth

Circuit decided that California could do just that.

That decision was compelled by the circuit’s prior

holding in Los Angeles, which held that States and localities may evade TCA preemption simply by banning the sale of products that do not meet state and

local standards. 29 F.4th at 556.

But if California and Los Angeles County may

ban FDA-authorized tobacco products by imposing

state and local standards that differ from the TCA’s,

then every State and locality can do the same. That

would contravene Congress’s plainly stated statutory

language, which expressly prohibits States and localities from banning the sale of tobacco products that do

not meet state or local standards. By blessing California’s state-wide flavor ban, the Ninth Circuit once

again discards Congress’s statutory purpose and

6

invites an avalanche of contradictory state and local

standards.

No matter the Ninth Circuit’s view, California

cannot escape preemption simply by recasting its flavor ban as a regulation of tobacco sales rather than

tobacco production. The Supremacy Clause does not

turn on such word play. This Court has twice reversed

the Ninth Circuit for interpreting an express preemption clause in a way that allows States and localities

to defeat federal product standards with a sales ban.

“[I]t ‘would make no sense,’” this Court has explained,

“to allow state regulations to escape preemption because they addressed the purchase, rather than manufacture, of a federally regulated product.” Nat’l Meat,

565 U.S. at 464. Standards always target the product

itself, so a regulation of tobacco standards is

preempted no matter if it is aimed at “production” or

“sales.” Engine Mfrs, 541 U.S. at 254. This case is no

different.

Nor may California rely on a sweeping construction of the TCA’s saving clause to escape preemption. This Court has rejected—repeatedly—such expansive readings. Indeed, many federal laws contain

a broad saving clause that protects state and local

regulatory power or preserves state and local remedies. States and localities have often argued that a

saving clause permits them to act in a way that undermines the very law containing the saving clause.

And time and again, the Court has rejected those arguments and held that a saving clause is not some

kind of statutory self-destruct mechanism. Because

the Ninth Circuit’s reading of the TCA’s saving clause

conflicts with this Court’s consistent construction of

federal saving clauses, the Court should intervene.

7

In carefully crafted, plain language, Congress

told California not to do this. California did it anyway,

and the Ninth Circuit approved. Such willful subversion of the Supremacy Clause should not be allowed

to stand.

ARGUMENT

I.

THE DECISION BELOW CONTRAVENES THIS

COURT’S PREEMPTION PRECEDENTS.

The TCA tasks the FDA with maintaining uniform tobacco product standards—including flavors in

tobacco products—based on a careful weighing of varied factors, including public health. States and localities may not countermand that congressional regulatory scheme. Yet California’s flavor ban elevates the

State’s tobacco flavor standard over the federal standard. The Supremacy Clause won’t allow that.

According to the Ninth Circuit, however, because California’s flavor ban does not dictate “how [a]

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

“standard” but merely a “sales” ban. Los Angeles, 29

F.4th at 556. Contrary to the Ninth Circuit’s view,

Congress’s ability to safeguard the federal interests at

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

differently, a standard is a standard for preemption

purposes no matter how it is enforced or described.

California historically has been reluctant to learn this

lesson.

This Court’s holding in Engine Manufacturers

proves the point. There, California prohibited anyone

from purchasing or leasing vehicles that flunked California’s stringent emissions requirements. 541 U.S.

8

at 248. But the Clean Air Act forbade States from setting emissions standards different from the federal

standards. Id. at 252. As it does here, California insisted that the challenged ban regulated only the

“purchase” of vehicles, rather than their sale or manufacture. Id. at 248.

The Court roundly rejected that argument,

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

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

‘standard’ a limiting component” by insisting that a

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

require[s] manufacturers to ensure that the vehicles

they produce have particular emissions characteristics.” Id. Treating such restrictions “differently for

preemption purposes would make no sense,” the

Court concluded, because a “manufacturer’s right to

sell federally approved vehicles is meaningless” without a “purchaser’s right to buy them.” Id. at 255.

Simply put, “a standard is a standard even when not

enforced through manufacturer-directed regulation.”

Id. at 254. So too here.

National Meat reaffirms this sensible view of

federal preemption. There, a California law banned

the sale of meat from non-ambulatory animals. 565

U.S. at 463–64. A trade group suing on behalf of meatpackers and processors argued that the Federal Meat

Inspection Act (FMIA) preempted state “requirements * * * which are in addition to, or different than

those made under [the FMIA].” Id. at 458. But because the FMIA preempted only production mandates, California argued that its state-wide sales ban

escaped preemption. Id. at 463.

9

This Court unanimously disagreed. Although

the FMIA’s preemption clause does “not usually foreclose state regulation of the commercial sales activities of slaughterhouses,” California’s sales ban was

preempted. Id. “[I]t ‘would make no sense,’” the Court

explained, “to allow state regulations to escape

preemption because they addressed the purchase, rather than manufacture, of a federally regulated product.” Id. at 464. A contrary holding, the Court explained, would have allowed California to “impose any

regulation on slaughterhouses just by framing it as a

ban on the sale of meat produced in whatever way the

State disapproved.” Id. at 464. To allow States to circumvent federal law so easily “would make a mockery

of the FMIA’s preemption provision.” Id.

As these cases confirm, federal preemption

does not turn on categorical framing or clever phrasing. It makes no difference how a State or locality enforces its contrary product standard. Whether it compels manufacturers to comply or prohibits retailers

from selling nonconforming goods, any state or local

product standard that seeks to override the federal

standard is preempted.

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

by reading a preemption clause that preempts “any”

requirement that differs from the federal standard as

one preempting only requirements about “how [a tobacco] product must be produced.” Pet. App. 25a. That

reading not only defeats the TCA but also “make[s] a

mockery” of federal preemption. Nat’l Meat, 565 U.S.

at 464. This Court should grant review to vindicate

Congress’s vital federal interest in uniformity.

10

II.

THE NINTH CIRCUIT’S FLAWED TCA CONSTRUCTION FLOUTS THIS COURT’S SAVINGCLAUSE JURISPRUDENCE.

Reasonably construed, the TCA does not

preempt California’s imposing age-based or firesafety regulations on tobacco products. But it prohibits California from defeating federal tobacco product

standards under the guise of regulating “sales.” The

TCA’s preemption and saving clauses are clear about

that. Put differently, a state or local law may complement the TCA; it may never impede it. Holding otherwise, the panel majority in Los Angeles botched the

TCA’s statutory scheme by ignoring vital canons of

statutory construction and this Court’s saving-clause

cases.

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

preempts “any requirement which is different from,

or in addition to,” federal tobacco product standards.

21 U.S.C. § 387p(a)(2)(A). The TCA’s saving clause restores only a narrow sliver of what the preemption

clause takes away. States and localities may enact

“requirements relating to the sale” of tobacco products

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

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

transformed this narrow sliver into a plank. In reading the TCA’s saving clause expansively, the Ninth

Circuit ignored two fundamental rules of statutory

construction.

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

savings, and preservation clauses in context with the

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

solely on the broadest imaginable definition of its

component words.” Epic Sys. v. Lewis, 138 S. Ct. 1612,

11

1631 (2018). A court, after all, construes statutes, not

isolated provisions “in a vacuum.” Home Depot USA,

Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019) (cleaned

up). A court must always “read [a statute’s] words in

their context and with a view to their place in the

overall statutory scheme.” Id. Reading a clause out of

context can wreak havoc on the operation of the rest

of the statute. This case shows how.

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

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

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

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

§ 387p(a)(2)(B). Because “Congress acts intentionally”

whenever it “includes particular language in one section of a statute but omits it in another section,” Russello v. United States, 464 U.S. 16, 23 (1983), Congress’s choice to omit the words “or prohibiting” from

a nearly identical phrase in the saving clause must be

given effect. Here that means giving effect to Congress’s choice that States and localities cannot ban

the sale of tobacco products based on their own unique

product standards.

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

governs the general.” RadLAX Gateway Hotel v.

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

general/specific canon is perhaps most frequently applied to statutes in which a general permission or prohibition is contradicted by a specific prohibition or

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

broad reading of a saving clause goes against specific

provisions ensuring that the FDA sets “national

12

standards controlling the manufacture of tobacco

products and the * * * ingredients used in such products.” 21 U.S.C. § 387 note.

This Court has interpreted many saving

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

refused to allow a saving clause to upset Congress’s

carefully chosen regulatory scheme. Instead, it has always read the saving clause in a way that is incompatible with the Ninth Circuit’s reading here.

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

U.S. 374 (1992). The Airline Deregulation Act contains a saving clause held over from the Federal Aviation Act. Nothing in the FAA, the clause says, “shall

in any way abridge or alter the remedies now existing

at common law or by statute, but the provisions of this

chapter are in addition to such remedies.” Id. at 378.

The ADA bars the States from regulating airline prices, routes, or services. Id. at 378–79. The Morales plaintiffs argued that the FAA’s saving clause

saved that bar from preempting their state-law deceptive advertising claim. Rejecting this argument, Morales observes that “the specific governs the general.”

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

savings clause.” Id. A saving clause cannot overcome

a specific provision—such as the “prices, routes, or

services” bar—that divides authority between state

and federal governments.

2. AT&T v. Cent. Off. Tel., Inc., 524 U.S. 214

(1998). “Nothing in this [law],” the Communications

Act of 1934 says, “shall in any way abridge or alter

13

the remedies now existing at common law or by statute.” 47 U.S.C. § 414.

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

with the government. A telephone-service broker

brought state-law claims that, if successful, would

have required AT&T to provide service at a rate lower

than AT&T’s filed rates. Id. at 222–23. AT&T holds

that the federal rate-filing rules preempt the broker’s

state-law claims.

The Communications Act’s general saving

clause, the Court said, changes nothing: “The savings

clause cannot in reason be construed as continuing in

customers a common law right, the continued existence of which would be absolutely inconsistent with

the provisions of the act.” Id. at 227–28 (quoting Tex.

& Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426,

446 (1907)). In other words, the Court explained, “the

act cannot be held to destroy itself.” Id. at 228.

3. Geier v. Am. Honda Motor Co., 529 U.S. 861

(2000). The National Traffic and Motor Vehicle Safety

Act contains a saving clause that says “‘compliance

with’ a federal safety standard ‘does not exempt any

person from any liability under common law.’” 529

U.S. at 868.

Sued for omitting airbags from the 1987 Honda

Accord, Honda invoked a regulation under the Act

that made airbags merely an optional safety feature.

The plaintiff answered with the Act’s saving clause.

The Court rejected that argument.

14

Geier reiterated that this Court “has repeatedly declined to give broad effect to savings clauses

where doing so would upset the careful regulatory

scheme established by federal law.” Id. at 870. Put another way, a saving clause “does not bar the ordinary

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

because the Act’s regulation made airbags optional,

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

only if federal law required airbags, were preempted—the saving clause notwithstanding. Id. at 874–86.

Here, if Congress had meant for the TCA to exempt from preemption every state and local ban on tobacco sales, it would have made no sense for Congress

to single out “requirement[s] * * * relating to tobacco

product standards” as a subcategory of nonpreempted requirements. Nor would the saving

clause need to narrow “sales” with the qualifiers “individuals of any age” and “relating to fire safety

standards.”

While the Ninth Circuit relied on the TCA’s

saving clause to discard specific provisions of the

TCA, Morales, AT&T, and Geier all use a specific statutory provision to limit the scope of a saving clause.

The Ninth Circuit’s reading thus conflicts with this

Court’s understanding, grounded in sound principles

of statutory interpretation, that a federal saving

clause is not an invitation for States and localities to

undermine federal law. If that understanding is to

continue to hold sway, the petition must be granted.

15

III.

THIS IS AN IMPORTANT QUESTION THAT MERITS REVIEW.

This case matters. California’s sales ban on all

flavored tobacco products is not a subtle encroachment on federal power. Rather, it is an aggressive nullification of federal law. Left in place, the Ninth Circuit’s holding would allow States and localities to

evade other federal product standards by merely

framing a contrary standard as a sales ban. It also

threatens to lay waste to years of FDA work while exposing companies to liability for selling FDA-authorized products.

This is not wild speculation. As the petition

highlights, hundreds of jurisdictions have enacted

similar laws, spurring litigation (and separate opinions) in four courts of appeals. Pet. 33–34. There is

thus no reason to await further percolation. The

stakes are high. “The marketing of tobacco constitutes

one of the greatest basic industries of the United

States.” 7 U.S.C. § 1311. California’s ban shuts the

door to one of the nation’s largest markets for flavored

tobacco.

National uniformity in tobacco product standards protects manufacturers and consumers alike. It

allows for manufacturers to operate under one set of

rules—federal rules—instead of dozens or even hundreds of sets of potentially conflicting rules. Without

uniformity, manufacturers are forced to either comply

with a thicket of conflicting, overlapping, and burdensome state and local standards or risk liability from

state and local law enforcement and regulators. Regardless of the choice made, these increased risks

raise the cost of doing business nationwide. All too

16

often, those costs are ultimately passed on to consumers.

The Ninth Circuit’s misreading of the TCA’s

preemption clause also invites second guessing of the

FDA’s studied conclusions on how best to balance the

TCA’s multifaceted policy objectives. The Los Angeles

panel majority’s holding, if allowed to stand, will prevent Congress from accomplishing those objectives by

subjecting tobacco manufacturers to a jumble of disparate product standards, eradicating the federal uniformity that Congress decided is an essential element

of federal tobacco regulation. California’s flavor ban is

thus a naked affront to federal law.

What’s more, the FDA has expertise that California lacks. The FDA’s work “requires deep

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

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

still. Indeed, the current federal tobacco product

standards reflect the FDA’s studied determination,

after weighing “the risks and benefits to the population as a whole,” that a revised standard is not “appropriate for the protection of the public health.” 21

U.S.C. §§ 387g(a)(3)(A), (B).

These complex issues are best handled by the

FDA, with its teams of doctors, scientists, statisticians, and economists, and not by the California General Assembly or California voters, however wise and

well-intentioned they may be. Even apart from the

TCA’s plainly written express preemption clause, this

Court has repeatedly recognized that when an

agency’s regulatory judgment reflects a careful

17

balancing of competing considerations under a comprehensive federal scheme, any state or local law that

could disrupt the balance struck by the agency is

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

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

at 874–86. That is this case.

California is perfectly free to uphold state interests; it should continue its traditional role of regulating when, where, how, and to whom tobacco products are sold—including age-based and fire-safety

regulations. But this Court must intervene and respond whenever any State or locality brazenly subverts federal law. This is just such a case.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

September 29, 2023

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org