Respondents 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 TOBACCO CO., et al.,

Petitioners,

v.

ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

HELEN H. HONG*

Principal Deputy

Solicitor General

RENU R. GEORGE

Senior Assistant

Attorney General

JAMES V. HART

Supervising Deputy

Attorney General

PETER F. NASCENZI

TAYLOR ANN WHITTEMORE

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9693

Helen.Hong@doj.ca.gov

*Counsel of Record

November 29, 2023

(Additional counsel listed on signature page)

QUESTION PRESENTED

In October 2022, R.J. Reynolds Tobacco Co. filed a

petition for a writ of certiorari in a separate case involving a Los Angeles County ban on the sale of certain flavored tobacco products. Pet., R.J. Reynolds

Tobacco Co. v. County of Los Angeles, 143 S. Ct. 979

(No. 22-338) (Oct. 7, 2022). That petition presented

the question “[w]hether the Tobacco Control Act expressly preempts state and local laws that prohibit the

sale of flavored tobacco products.” Id. at i. The Ninth

Circuit had ruled that it did not, see R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th 542 (9th

Cir. 2022), joining an unbroken line of federal cases

rejecting preemption challenges to state and local prohibitions on the sale of flavored tobacco products.

This Court denied the petition in February 2023.

In this case, R.J. Reynolds and other petitioners

challenge Senate Bill 793, a California law prohibiting

the sale of certain flavored tobacco products. In both

the district court and the court of appeals, petitioners

acknowledged that their preemption claim was foreclosed by the court of appeals’ decision in County of

Los Angeles. They acquiesced to the dismissal of their

preemption claim in the district court, then appealed

and successfully asked the court of appeals to summarily affirm. Petitioners now ask this Court to grant

plenary review of the same question presented in the

County of Los Angeles petition:

Whether the Tobacco Control Act expressly

preempts state and local laws that prohibit the sale of

flavored tobacco products.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

A. Legal background ........................................... 1

B. S.B. 793 ........................................................... 7

C. Proceedings below ........................................... 8

Argument ................................................................... 10

Conclusion.................................................................. 19

iii

TABLE OF AUTHORITIES

Page

CASES

Austin v. Tennessee

179 U.S. 343 (1900) ................................................ 1

California v. Cabazon Band of Mission

Indians

480 U.S. 202 (1987) .............................................. 16

Engine Mfrs. Ass’n v. S. Coast Air

Quality Mgmt. Dist.

541 U.S. 246 (2004) ........................................ 13, 14

FDA v. Brown & Williamson Tobacco

Corp.

529 U.S. 120 (2000) ................................................ 2

Indeps. Gas & Serv. Stations Ass’ns v.

City of Chicago

112 F. Supp. 3d 749 (N.D. Ill. 2015) ...................... 4

Kansas v. Garcia

140 S. Ct. 791 (2020) ............................................ 13

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

City of Providence

731 F.3d 71 (1st Cir. 2013) ........................ 4, 15, 17

National Meat Ass’n v. Harris

565 U.S. 452 (2012) ........................................ 14, 15

iv

TABLE OF AUTHORITIES

(continued)

Page

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

Edina

60 F.4th 1170 (8th Cir. 2023) .................... 4, 11, 17

R.J. Reynolds Tobacco Co. v. Cnty. of

San Diego

529 F. Supp. 3d 1147 (S.D. Cal. 2021)................... 4

R.J. Reynolds Tobacco Co. v. County of

Los Angeles

143 S. Ct. 979 (2023) ...................................... 1, 6, 9

R.J. Reynolds Tobacco Co. v. County of

Los Angeles

29 F.4th 542 (9th Cir. 2022) ... 1-2, 4-6, 8-13, 16-18

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

of New York

708 F.3d 428 (2d Cir. 2013).......................... 2, 4, 17

Ysleta Del Sur Pueblo v. Texas

142 S. Ct. 1929 (2022) .................................... 15, 16

STATUTES

21 U.S.C.

§§ 387, et seq. .......................................................... 2

§ 387a ...................................................................... 2

§ 387p............................................ 2, 4, 5, 12, 13, 14

§ 387p(a)(1) ......................................................... 2, 3

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

§ 387p(a)(2)(B) .................................................... 4, 6

§ 678 ...................................................................... 14

v

TABLE OF AUTHORITIES

(continued)

Page

42 U.S.C.

§ 7522(a) ............................................................... 14

§ 7523-7524........................................................... 14

§ 7525 .................................................................... 14

§ 7543(a) ......................................................... 13, 14

California Elections Code

§ 15501(b) ............................................................... 8

California Health & Safety Code

§ 104559.5 ............................................................... 7

§ 104559.5(a)(1) ...................................................... 7

§ 104559.5(a)(4) ...................................................... 7

§ 104559.5(b)(1) ...................................................... 7

Family Smoking Prevention and

Tobacco Control Act (TCA), Pub. L.

No. 111-31, 123 Stat. 1776 (2009) ......................... 2

Los Angeles County Code

§ 11.35.070(E) ......................................................... 5

New Jersey Stat. Ann. § 2A:170-51.6

(2008) ...................................................................... 2

New Mexico Stat. § 57-2-14 (2000) ............................. 2

Vermont Stat. Ann. Title 7, § 1003(d)

(2000) ...................................................................... 2

vi

TABLE OF AUTHORITIES

(continued)

Page

CONSTITUTIONAL PROVISIONS

California Const. art. II

§ 9(a) ....................................................................... 7

§ 10(a) ..................................................................... 8

LEGISLATIVE MATERIALS

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

2009 U.S.C.C.A.N. 468 (H.R. Rep.) ................... 3, 4

S.B. 793, Act of Aug. 28, 2020, ch. 34,

2020 Cal. Stat. 1743 ............................................... 6

OTHER AUTHORITIES

Cal. Sec’y of State, Unofficial Election

Results, Proposition 31 (Dec. 2,

2022), https://tinyurl.com/ycy5xz3e ....................... 8

Dep’t of Health and Human Serv., FDA,

Tobacco Product Standard for

Menthol in Cigarettes, 87 Fed. Reg.

26454 (May 4, 2022),

https://tinyurl.com/j3d4xvam ............................... 12

Inst. of Med., Nat’l Acads. of Sci.,

Ending the Tobacco Problem (2007),

https://tinyurl.com/msn6sbuy ............................... 1

vii

TABLE OF AUTHORITIES

(continued)

Page

Off. of Info. and Reg. Aff., Off. of Mgmt.

and Budget, Tobacco Product

Standard for Menthol in Cigarettes

(Oct. 13, 2023),

https://tinyurl.com/2zhscz6s ................................ 12

Weixel, Biden Administration Looks to

Ban Menthol Cigarettes, The Hill,

Oct. 24, 2023,

https://tinyurl.com/4u2nxyhu .............................. 12

1

STATEMENT

A. Legal Background

1. “Until just over a decade ago, tobacco products

were regulated almost exclusively by the states and

local governments, with little federal involvement.”

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

29 F.4th 542, 547 (9th Cir. 2022), cert. denied, 143 S.

Ct. 979 (No. 22-338) (Feb. 27, 2023). Early regulations

of tobacco “includ[ed] the passage of laws in several

states that prohibited tobacco use by both adults and

minors.” Inst. of Med., Nat’l Acads. of Sci., Ending the

Tobacco Problem 107 (2007). 1 This Court long ago recognized the broad authority of the States to regulate

in that way. In upholding a Tennessee law that categorically banned the sale of cigarettes, the Court concluded that it is “within the province of the legislature

to say how far [cigarettes] may be sold, or to prohibit

their sale entirely.” Austin v. Tennessee, 179 U.S. 343,

348-349 (1900).

State and local regulation of tobacco products continued throughout the twentieth century, becoming

even more prevalent as scientific evidence confirmed

that the use of cigarettes and other tobacco products

caused disease and death. See Ending the Tobacco

Problem, supra, at 109-121. In the early 1990s, Congress considered but ultimately failed to enact legislation giving the Food and Drug Administration explicit

authority to regulate tobacco. When the FDA nonetheless promulgated regulations in 1996 to assert jurisdiction over tobacco products, this Court struck

them down as exceeding the agency’s authority. See

1 https://tinyurl.com/msn6sbuy.

2

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 128, 161 (2000). Meanwhile, States and local governments continued to enact laws restricting the sale

and use of cigarettes and other tobacco products. 2

2. Congress enacted the Family Smoking Prevention and Tobacco Control Act (TCA) in 2009. Pub. L.

No. 111-31, 123 Stat. 1776 (2009), codified at 21

U.S.C. §§ 387, et seq. The text and structure of the

TCA reflect Congress’s dual objectives of granting the

FDA certain authority “to regulate tobacco products,”

while at the same “expressly preserving and saving

from preemption” much of the pre-existing “state and

local regulatory authority over tobacco.” County of Los

Angeles, 29 F.4th at 547-548; see, e.g., 21 U.S.C.

§ 387a; id. § 387p.

The question presented in this case turns on

21 U.S.C. § 387p, the section of the TCA titled “Preservation of State and local authority.” That section contains “a unique three-layered preservation provision,”

County of Los Angeles, 29 F.4th at 550, reflecting

“Congress’s explicit decision to preserve for the states

a robust role in regulating, and even banning, sales of

tobacco products,” U.S. Smokeless Tobacco Mfg. Co. v.

City of New York, 708 F.3d 428, 436 (2d Cir. 2013).

The first of the three layers is a clause titled

“Preservation,” 21 U.S.C. § 387p(a)(1), which states

that,

[e]xcept as provided in paragraph (2)(A), nothing in [the TCA], or rules promulgated under

2 See, e.g., Vt. Stat. Ann. tit. 7, § 1003(d) (2000) (prohibiting sale

of “bidi” cigarettes); N.M. Stat. § 57-2-14 (2000) (prohibiting sale

of clove cigarettes); N.J. Stat. Ann. § 2A:170-51.6 (2008) (prohibiting sale of certain flavored cigarettes).

3

[the TCA], shall be construed to limit the authority of a Federal agency (including the

Armed Forces), a State or political subdivision

of a State, or the government of an Indian

tribe to enact, adopt, promulgate, and enforce

any law, rule, regulation, or other measure

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 . . .

of tobacco products by individuals of any age.

Id. § 387p(a)(1). The preservation clause ensures

“that state authority is preserved, with no federal

preemption, with regard to enacting . . . any law . . . in

critical areas with respect to tobacco products that is

in addition to or more stringent than required under

[the TCA].” H.R. Rep. No. 111-58 pt. 1, at 45 (2009),

2009 U.S.C.C.A.N. 468 (H.R. Rep.). That preserved

authority expressly “includ[es] measures relating to or

prohibiting the sale” of tobacco products. Id.

The second layer, the preemption clause in Section 387p(a)(2)(A), directs that

[n]o State or political subdivision of a State

may establish or continue in effect with respect to a tobacco product any requirement

which is different from, or in addition to, any

requirement under the provisions of [the TCA]

relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing

standards, or modified risk tobacco products.

21 U.S.C. § 387p(a)(2)(A). That text restricts the scope

of preemption to state laws that conflict with or exceed

4

certain FDA requirements “relating to specified and

limited areas.” H.R. Rep., supra, at 45.

The third and final layer, Section 387p(a)(2)(B), is

styled as an “Exception” to the preemption clause, and

is commonly referred to as the savings clause. The

savings clause directs that the preemption clause

“does not apply to requirements relating to the sale, distribution, possession, information reporting to the

State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of

any age.” Id. § 387p(a)(2)(B) (emphasis added). In enacting the unique, three-part “Preservation” provision

contained in Section 387p, Congress thus “sandwiched

the[] preemption clause between preservation and

savings clauses that explicitly and repeatedly reiterated local authority over product sales.” County of Los

Angeles, 29 F.4th at 558.

3. Shortly after Congress enacted the TCA, tobacco companies began to challenge local restrictions

on the sale of flavored tobacco products on express

preemption grounds. In the 14 years since the TCA

was enacted, however, no court has agreed with the

tobacco industry position that the Act preempts restrictions or prohibitions on the sale of flavored tobacco products. 3

3 See, e.g., R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th

1170, 1177 (8th Cir. 2023) (per curiam); County of Los Angeles,

29 F.4th at 561; U.S. Smokeless Tobacco Mfg. Co. v. City of New

York, 708 F.3d 428, 436 (2d Cir. 2013); Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71, 82 (1st Cir. 2013); R.J.

Reynolds Tobacco Co. v. Cnty. of San Diego, 529 F. Supp. 3d 1147,

1159 (S.D. Cal. 2021); Indeps. Gas & Serv. Stations Ass’ns v. City

of Chicago, 112 F. Supp. 3d 749, 754 (N.D. Ill. 2015).

5

Of particular relevance here, petitioner R.J. Reynolds Tobacco Company and other plaintiffs sued to enjoin a Los Angeles County ordinance that banned the

sale of any flavored tobacco product. See County of Los

Angeles, 29 F.4th at 551 (describing Los Angeles

County, Cal., Code § 11.35.070(E) (2019)). The plaintiffs argued (id. at 552, 556) that the county ordinance

imposed a “requirement which is different from, or in

addition to” the TCA’s requirements “relating to tobacco product standards,” in violation of the preemption clause. 21 U.S.C. § 387p(a)(2)(A).

After the district court dismissed the complaint,

the court of appeals affirmed. County of Los Angeles,

29 F.4th at 561. In an opinion authored by Judge VanDyke, the court of appeals examined the “unique tripartite preemption structure” of the TCA, and held

that “text, structure, and historical context precludes

express preemption” for two reasons. Id. at 548, 552.

First, “the phrase ‘tobacco product standards’ in

the TCA’s preemption clause does not encompass the

County’s sales ban.” County of Los Angeles, 29 F.4th

at 553. Considering the phrase in light of the “surrounding categories” and the “historical ‘backdrop

against which Congress’ acted,” the court instead concluded that “it makes sense to view ‘tobacco product

standards’ in the TCA’s preemption clause as most

naturally referring to standards pertaining to the production or marketing stages up until the actual point

of sale.” Id. at 554, 555. Understood in that way, the

preemption clause was consistent with the “careful

balance of power between federal authority and state,

local, and tribal authority” struck in the TCA,

“whereby Congress has allowed the federal government to set the standards regarding how a product

would be manufactured and marketed, but has left

6

states, localities, and tribal entities the ability to restrict or opt out of that market altogether.” Id. at 555.

“Alternatively,” even if a sales ban on flavored tobacco products could be said to relate to a “tobacco

product standard” under the TCA’s preemption clause,

the court of appeals held that it would nonetheless “be

‘except[ed]’ from preemption by the TCA’s savings

clause.” County of Los Angeles, 29 F.4th at 558. “A

ban on the sale of flavored tobacco products is, simply

put, a requirement that tobacco retailers or licensees

throughout the County not sell flavored tobacco products.” Id. “It therefore fits within the savings clause

as a ‘requirement[] relating to the sale . . . of[] tobacco

products [to] individuals of any age.’” Id. (alterations

in original) (quoting 21 U.S.C. § 387p(a)(2)(B)). Judge

Nelson dissented, id. at 567, but the court of appeals

later denied rehearing en banc without any judge requesting a vote. See County of Los Angeles, C.A.

No. 20-55930, Dkt. 59.

The plaintiffs in County of Los Angeles then filed a

petition for a writ of certiorari in this Court, seeking

plenary review of a question identical to the question

presented in this case: “[w]hether the Tobacco Control

Act expressly preempts state and local laws that prohibit the sale of flavored tobacco products.” Pet. i, R.J.

Reynolds Tobacco Co v. County of Los Angeles, 143 S.

Ct. 979 (No. 22-338) (Oct. 7, 2022). They argued that

the County of Los Angeles decision “directly conflicts”

with this Court’s preemption precedents, id. at 11, 18;

“conflicts with the reasoning of decisions from other

courts of appeals,” id. at 26; and presents an issue that

is “exceptionally important,” id. at 29. This Court denied the petition.

7

B. S.B. 793

The California Legislature enacted S.B. 793 in

2020. See S.B. 793, Act of Aug. 28, 2020, ch. 34,

2020 Cal. Stat. 1743 (codified at Cal. Health & Safety

Code § 104559.5). S.B. 793 provides that tobacco retailers in California may not sell a “flavored tobacco

product” or a “tobacco product flavor enhancer.” Cal.

Health & Safety Code § 104559.5(b)(1). It defines a

“flavored tobacco product” as a tobacco product “that

contains a constituent that imparts a characterizing

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

is a “distinguishable taste or aroma, or both, other

than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product.” Id. § 104559.5(a)(1). The statute

directs that a “tobacco product shall not be determined

to have a characterizing flavor solely because of the

use of additives or flavorings or the provision of ingredient information.” Id. “Rather, it is the presence of

a distinguishable taste or aroma, or both, as described

in the first sentence of [subsection (a)(1)], that constitutes a characterizing flavor.” Id.

Shortly after the Legislature enacted S.B. 793, a

coalition of manufacturers and sellers of tobacco products—including R.J. Reynolds—succeeded in putting

S.B. 793 to a referendum vote. See Order, Agenbroad

v. Padilla, Case No. 34-2020-80003542 (Sacramento

Super. Ct. Dec. 10, 2020). That had the effect of suspending the effective date of S.B. 793 until the referendum was approved by a majority of voters. See Cal.

Const. art. II, § 9(a). More than 63.4 percent of California voters then approved S.B. 793 at the November

8

2022 general election. 4 By operation of state law,

S.B. 793 took effect in December 2022. See Cal. Const.

art. II, § 10(a); Cal. Elec. Code § 15501(b).

C. Proceedings Below

The petitioners here are R.J. Reynolds Tobacco

Company and other members of the tobacco industry.

The day after the voters approved S.B. 793, petitioners

filed a complaint alleging that the TCA expressly

preempts S.B. 793’s ban on the sale of flavored tobacco

products. Pet. App. 3a. 5 They also filed a motion for

a preliminary injunction and an injunction pending

appeal. Id. at 21a-24a. But they acknowledged that

the district court was bound to deny that motion “by

Ninth Circuit precedent”—the County of Los Angeles

decision. D. Ct. Dkt. 13-1 at 1. On that basis, they

“acquiesce[d] in the denial” of the preliminary

injunction and the injunction pending appeal. Id. at

2. The district court then entered an order denying

the motion, reasoning that the “Ninth Circuit’s

decision in County of Los Angeles currently forecloses

Plaintiffs’ express preemption claim.” Pet. App. 19a.

Petitioners appealed and moved for an injunction

pending appeal in the court of appeals, but again

“acquiesc[ed] in the denial of [that motion] because

binding Ninth Circuit precedent currently forecloses

the express preemption claim.” C.A. Dkt. 14 (9th Cir.

Nov. 18, 2022). The court of appeals denied the

motion. Pet. App. 17a, , id. at 16a.

4 See Cal. Sec’y of State, Unofficial Election Results, Proposition

31 (Dec. 2, 2022), https://tinyurl.com/ycy5xz3e.

5 Petitioners also alleged a violation of the dormant Commerce

Clause, but later withdrew that claim. Pet. 13, n.3.

9

Petitioners next filed an emergency application for

a writ of injunction in this Court, asking the Court to

prohibit enforcement of S.B. 793 on the ground that

the TCA “expressly preempts state and local laws that

prohibit the sale of flavored tobacco products.” Appl.

i, No. 22A474 (Nov. 29, 2022). They argued that the

County of Los Angeles decision is “manifestly wrong,”

id. at 2; “directly conflicts” with this Court’s preemption precedents, id. at 22, 29; “conflicts with the reasoning of decisions from other courts of appeals,” id. at

30; and “presents issues of imperative public importance,” id. at 32. In the alternative, they asked the

Court to treat the application as a petition for a writ

of certiorari before judgment and grant review. Id. at

40. This Court denied the application on December 12, 2022, and S.B. 793 took effect nine days later.

In January 2023, the court of appeals granted petitioners’ motion to summarily affirm the district

court’s denial of a preliminary injunction. Pet. App.

16a. Petitioners obtained an extension of time from

Justice Kagan to file a petition for a writ of certiorari

seeking review of that judgment, but did not ultimately file such a petition. See No. 22A910.

In March 2023, the district court dismissed petitioners’ complaint, reasoning that the County of Los

Angeles decision “bars the [p]reemption claim.” Pet.

App. 4a, 13a. Petitioners had acknowledged that the

claim was “foreclosed by Ninth Circuit precedent” and

that the district court was “bound to dismiss that

claim.” D. Ct. Dkt. 34 at 1. Petitioners again appealed, and again moved for the court of appeals to

summarily affirm because County of Los Angeles “forecloses” their preemption claim. C.A. No. 23-55349,

Dkt. 6 at 2. The court of appeals granted the motion

10

in a one-page summary order, citing County of Los Angeles. Pet. App. 1a.

ARGUMENT

Petitioners seek review of the exact same question

that came to this Court earlier this year in the County

of Los Angeles petition. The Court denied review of

that petition and there is no reason for a different outcome here.

1. This petition is nearly identical to the petition

in County of Los Angeles that this Court recently denied. See R.J. Reynolds Tobacco Co. v. County of Los

Angeles, 143 S. Ct. 979 (No. 22-338) (Feb. 27, 2023).

And the core arguments advanced by petitioners here

are also the same as those considered by the Court late

last year, when it denied petitioners’ application for a

writ of injunction—and rejected their alternative request for certiorari before judgment. See R.J. Reynolds Tobacco Co. v. Bonta, No. 22A474 (Dec. 12, 2022).

Petitioners now argue that “certiorari is warranted

notwithstanding this Court’s previous denials of review on the question presented.” Pet. 5. That argument is not persuasive.

Petitioners note that this case does not come to the

Court in an “emergency posture as it did late last

year,” “but rather after final judgment.” Pet. 5-6. But

the County of Los Angeles case likewise arrived at the

Court after final judgment, and not in an emergency

posture. R.J. Reynolds v. County of Los Angeles, 29

F.4th 542, 552 (9th Cir. 2022). This Court nonetheless

denied review in County of Los Angeles in that finaljudgment posture. In this case, the decision that petitioners ask the Court to review is a one-sentence summary affirmance based exclusively on the County of

Los Angeles decision. Pet. App. 1a.

11

Petitioners next contend that review is warranted

because the “Eighth Circuit has since addressed the

question, adding to the circuits opining on the issue.”

Pet. 6; see also Pet. 30-31. But the Eighth Circuit rejected R.J. Reynolds’ preemption theory. See R.J.

Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170

(8th Cir. 2023) (per curiam). The fact that an additional circuit has now joined the First, Second, and

Ninth Circuits in holding that the TCA does not

preempt sales restrictions on flavored tobacco products makes this petition an even worse candidate for

plenary review, not a better one. See supra n.3.

Petitioners also argue that “[t]he fact that this case

involves one the Nation’s largest markets distinguishes it from [County of] Los Angeles, where this

Court denied certiorari.” Pet. 32. But the practical

implications of both petitions are comparable. The decision in County of Los Angeles recognized that its ruling would have implications far beyond that one

county when it emphasized that “at least three states

and over 300 local jurisdictions across the country”

had “enact[ed] a prohibition on the sale of flavored tobacco products.” 29 F.4th at 551. R.J. Reynolds’ petition in that case argued that review was warranted

because “hundreds of jurisdictions have enacted” similar laws—including, in particular, “S.B. 793,” which

“cut off one of the nation’s largest markets from flavored tobacco products.” Pet. 31, County of Los Angeles, No. 22-338. This Court nonetheless denied review.

As petitioners acknowledge, moreover, the FDA recently proposed to regulate certain flavored tobacco

products, including by banning the manufacture of

menthol-flavored cigarettes. Pet. 15; see also Appl. 1,

No. 22A474 (petitioners’ acknowledgment that menthol cigarettes “make up approximately one-third of

12

the cigarette market”). 6 And since this Court’s denial

of the County of Los Angeles petition, the FDA has submitted the proposed regulation to the Office of Information and Regulatory Affairs for review, the last step

before the agency may issue the regulation. See

Weixel, Biden Administration Looks to Ban Menthol

Cigarettes, The Hill, Oct. 24, 2023, https://tinyurl.com/4u2nxyhu. 7 The increasing prospect of that

regulatory change further diminishes the practical

significance of this case, because if that regulation is

issued it would substantially reduce the number of flavored tobacco products that are restricted only as a result of S.B. 793.

2. Petitioners’ remaining arguments (Pet. 13-36)

are the same ones they advanced when they unsuccessfully sought certiorari in County of Los Angeles

(and certiorari before judgment in this case). They are

no more persuasive the third time around.

a. Petitioners reiterate (Pet. 13, 15-17, 19-22, 2526) their preferred interpretation of 21 U.S.C. § 387p,

which no court has adopted. In County of Los Angeles,

the court of appeals explained why the “text, structure, and historical context” of the TCA’s “unique

three-layered preservation provision” precludes that

interpretation. 29 F.4th at 550, 552; see id. at 552561. The brief in opposition to certiorari in that case,

and the State’s opposition to petitioners’ emergency

application in this one, both comprehensively respond

6 See Dep’t of Health and Human Serv., FDA, Tobacco Product

Standard for Menthol in Cigarettes, 87 Fed. Reg. 26454 (May 4,

2022), https://tinyurl.com/j3d4xvam.

7 See also Off. of Info. and Reg. Aff., Off. of Mgmt. and Budget,

Tobacco Product Standard for Menthol in Cigarettes (Oct. 13,

2023), https://tinyurl.com/2zhscz6s.

13

to petitioners’ merits theories. See Br. in Opp’n 10-21,

R.J. Reynolds Tobacco Co v. County of Los Angeles, No.

22-338 (Jan. 20, 2023)); Opp’n to Emergency Appl. 1732, No. 22A474 (Dec. 6, 2022).

b. As in those prior proceedings, petitioners argue

that certiorari is warranted because the decision in

County of Los Angeles “directly conflicts with this

Court’s precedents.” Pet.13; see id. at 14-28. They

read those precedents to establish a general rule that

States “cannot evade preemption by simply enforcing

their standards at the point of sale.” Id. at 14. But

“all preemption arguments[] must be grounded ‘in the

text and structure of the statute at issue.’” Kansas v.

Garcia, 140 S. Ct. 791, 804 (2020). None of the precedents cited by petitioners addressed the unique, threelayered “Preservation of State and local authority”

provision in 21 U.S.C. § 387p—or “anything like” that

provision. County of Los Angeles, 29 F.4th at 557. And

none of them establishes any categorical rule barring

state sales restrictions, as petitioners suggest. To the

contrary, the Court’s preemption precedents eschew

categorical rules and emphasize that the analysis in

each case must focus on the specific “language employed by Congress” in a particular statute. E.g., Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist.,

541 U.S. 246, 252-253 (2004).

Each of the cases discussed by petitioners turned

on statutory schemes materially different from the one

at issue here. In Engine Manufacturers, the Court

considered a Clean Air Act provision prohibiting

States from “adopt[ing] or attempt[ing] to enforce any

standard relating to the control of emissions from new

motor vehicles or new motor vehicle engines subject to

this part.” 541 U.S. at 252 (quoting 42 U.S.C.

§ 7543(a)). A local air quality district argued that its

14

rules prohibiting certain fleet operators from purchasing vehicles that did not comply with stringent emissions requirements were not preempted, reasoning

that the preemption provision only covered state “production mandate[s] that require[d] manufacturers” to

comply with emissions standards. Id. at 253 (alterations omitted; emphasis added). This Court rejected

that theory, explaining that it “confuse[d] standards

with the means of enforcing standards”—a “distinction” that was evident in multiple provisions of the

Clean Air Act that immediately followed the preemption provision. Id. at 253-254 (discussing 42 U.S.C.

§§ 7522(a), 7523-7524, 7525). 8 But that scheme is

markedly different from what Congress enacted in the

TCA—which expressly preserves the authority of state

and local governments to impose requirements relating to the sale of tobacco products. See 21 U.S.C.

§ 387p.

In National Meat Ass’n v. Harris, 565 U.S. 452

(2012), the Court again addressed “a fundamentally

different preemption provision,” County of Los Angeles, 29 F.4th at 557-558. That provision, 21 U.S.C.

§ 678, preempted state requirements that differed

from any Federal Meat Inspection Act (FMIA) requirements “with respect to premises, facilities and operations of any establishment at which inspection is

provided under . . . this Act.” Nat’l Meat, 565 U.S. at

458. This Court held that Section 678 preempted a

8 In particular, the text and structure of the Clean Air Act established that Congress “[c]learly” contemplated “enforcement of

emission standards through purchase requirements,” Engine

Mfrs., 541 U.S. at 254, thus bringing the district’s purchase requirements within the bar on state “attempt[s] to enforce any

standard relating to the control of emissions,” 42 U.S.C.

§ 7543(a).

15

state sales ban that “function[ed] as a command to

slaughterhouses to structure their operations in the

exact way the [state law] mandates.” Id. at 464. The

sales ban was “a criminal proscription calculated to

help implement and enforce . . . other regulations”

that set state requirements for the “receipt and purchase” of animals by slaughterhouses, barred the

“butchering and processing” of nonambulatory animals, and “mandat[ed] . . . immediate euthanasia” for

such animals. Id. at 463-464. Those requirements

were different from the requirements in the FMIA.

See, e.g., id. at 462 (the state law and the FMIA “require[d] different things of a slaughterhouse confronted

with

a

delivery

truck

containing

nonambulatory swine”).

Unlike the TCA, however, the FMIA preemption

provision “did not contain a savings clause that expressly exempted regulations ‘relating to the sale’ of ”

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

Providence, 731 F.3d 71, 82 (1st Cir. 2013). And even

setting that difference aside, the state law at issue

here is not comparable to the statute held preempted

in National Meat: It does not “function[] as a command” to manufacturers “to structure their operations

in” any particular way, and it does not implement or

enforce any substantive requirements about manufacturing. Nat’l Meat, 565 U.S. at 464. It leaves manufacturers free to produce flavored tobacco products

however they see fit. It just provides that tobacco retailers in California may not sell those products.

Finally, the Court’s decision in Ysleta Del Sur

Pueblo v. Texas, 142 S. Ct. 1929 (2022), did not even

address a preemption question. It construed a provision in the Ysleta del Sur and Alabama and Coushatta

Indian Tribes of Texas Restoration Act recognizing a

16

“dichotomy between prohibition and regulation” of

gaming activities on tribal lands. Id. at 1938. 9 The

Court concluded that Congress meant to incorporate a

distinction—recognized in California v. Cabazon

Band of Mission Indians, 480 U.S. 202 (1987)—which

allowed “‘prohibitory’ state gaming laws [to] be applied on the Indian lands” but “not state ‘regulatory’

gaming laws.” Ysleta, 142 S. Ct. at 1940. But the

Court emphasized that the same analysis would not

necessarily apply “in another context.” Id. at 1938. It

certainly does not control the interpretation of the

“Preservation of State and local authority” provision

in the TCA.

c. Petitioners also contend that the court of appeals’ decision in County of Los Angeles “conflicts with

the reasoning of decisions of the First, Second and

Eighth Circuits.” Pet. 28. As petitioners acknowledge,

however, each of those decisions “upheld local restrictions” on the sale of “flavored tobacco products.”

Id. (emphasis added). And petitioners are not correct

when they assert that “the First and Second Circuits

upheld local restrictions . . . based on reasoning that

would not permit a blanket prohibition” on sales of tobacco products. Id. In fact, the Second Circuit expressly reserved the question whether the savings

clause could be read to cover “an outright ban on the

sale of flavored tobacco,” noting that it was unnecessary to reach that issue to resolve the case before it.

9 The first subsection of the provision “says that gaming activities

prohibited by state law are also prohibited as a matter of federal

law” on tribal lands; the second subsection “insists that the statute does not grant Texas civil or criminal regulatory jurisdiction

with respect to” matters related to gaming. Ysleta, 142 S. Ct. at

1938.

17

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

708 F.3d 428, 435 (2d Cir. 2013). 10 The First Circuit

similarly had no occasion to address whether a sales

ban would fall within the scope of the savings clause:

the ordinance challenged in that case did not impose a

“blanket prohibition because it allow[ed] the sale of

flavored tobacco products in smoking bars.” Nat’l

Ass’n of Tobacco Outlets, Inc., 731 F.3d at 82.

Nor does petitioners’ criticism (Pet. 30-31) of the

reasoning in R.J. Reynolds Tobacco Co. v. City of

Edina, 60 F.4th 1170 (8th Cir. 2023) (per curiam), provide any basis for granting review in this case. Petitioners fault the Eighth Circuit for applying a

“presumption against preemption” in holding that a

local ban on flavored tobacco products was not

preempted in light of the TCA’s savings clause. As

petitioners acknowledge (at 31), however, the court of

appeals in County of Los Angeles held that flavored tobacco bans are not preempted by the TCA even without putting “any presumptive thumb on the scale.” 29

F.4th at 553 n.6. So petitioner’s critique of the Eighth

Circuit’s decision would not have made any difference

to the outcome of the Ninth Circuit’s analysis. If petitioners believed the Eighth Circuit’s application of a

presumption against preemption warranted plenary

review by this Court, they should have filed a petition

for a writ of certiorari in that case. They did not.

d. None of petitioners’ remaining arguments (Pet.

31-36) justify review. For example, petitioners argue

that this case is exceptionally important because

10 The reasoning of the Second Circuit on the issues it did decide

aligns with the approach of the court of appeals below. See

County of Los Angeles, 29 F.4th at 555 (citing U.S. Smokeless as

evidence that “[w]e are not alone in reaching this interpretation

of the TCA’s unique preemption structure”).

18

“[t]hroughout the U.S. Code, Congress has reserved to

the federal government the exclusive power to set uniform product standards for a variety of industries.”

Pet. 34. But this case concerns “a unique three-layered preservation provision.” County of Los Angeles,

29 F.4th at 550. Neither the text of the TCA nor that

three-layered structure is repeated in any of the other

statutes that petitioners invoke. There is thus no basis for fearing that the reasoning in County of Los Angeles “will carry over to numerous other preemption

clauses.” Pet. 35.

Petitioners also contend that review is warranted

because States and localities may attempt to use sales

restrictions as a way to regulate other tobacco products, such as by banning e-cigarettes “that contain certain ingredients.” Pet. 33. But speculation about

potential future regulatory actions is no basis for reviewing a decision that addresses only a ban on the

sale of certain flavored tobacco products—especially

not when that decision is a one-sentence summary disposition that rests entirely on a separate judgment

that this Court declined to review just nine months

ago.

19

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

HELEN H. HONG

Principal Deputy Solicitor General

RENU R. GEORGE

Senior Assistant Attorney General

JAMES V. HART

Supervising Deputy

Attorney General

PETER F. NASCENZI

TAYLOR ANN WHITTEMORE

Deputy Attorneys General

Counsel for the Attorney General

CLAUDIA G. SILVA

County Counsel,

County of San Diego

JOSHUA M. HEINLEIN

Senior Deputy County Counsel

KATIE RICHARDSON

Senior Deputy County Counsel

Counsel for the District Attorney

November 29, 2023