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

Supreme Court briefDec 12, 2023

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No. 23-207

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,

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

REPLY TO BRIEF IN OPPOSITION

NOEL J. FRANCISCO

Counsel of Record

CHRISTIAN G. VERGONIS

RYAN J. WATSON

ANDREW J.M. BENTZ

CHARLES E.T. ROBERTS

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

Counsel for Petitioners

TABLE OF CONTENTS

Page

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

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

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

II.

THE NINTH CIRCUIT’S HOLDING CONFLICTS

WITH THIS COURT’S PRECEDENTS AND THE

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

The Ninth Circuit’s interpretation of

the preemption clause contravenes

this Court’s precedents .............................. 3

The Ninth Circuit’s interpretation

of the savings clause contravenes

this Court’s precedents .............................. 7

The decision below conflicts with the

reasoning of other courts of appeals .......... 9

THE QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT.............................. 10

III. THIS CASE PRESENTS AN IDEAL VEHICLE .......... 13

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

TABLE OF AUTHORITIES

Page(s)

CASES

Collins v. Yellen,

141 S. Ct. 1761 (2021) ............................................ 7

Corley v. United States,

556 U.S. 303 (2009) ................................................ 9

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

Mgmt. Dist.,

541 U.S. 246 (2004) .................................. 1, 3, 4, 11

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) .............................. 1, 5, 6, 9, 11

NATO v. City of Providence,

731 F.3d 71 (1st Cir. 2013) ................................ 1, 9

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

143 S. Ct. 541 (2022) ............................................ 11

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

60 F.4th 1170 (8th Cir. 2023) (per curiam) ......... 10

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

Angeles,

29 F.4th 542 (9th Cir. 2022) ...... 1, 2, 4, 8, 9, 10, 11

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

143 S. Ct. 979 (2023) ........................................ 1, 11

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

New York,

708 F.3d 428 (2d Cir. 2013) ............................... 1, 9

United States v. Innovative Biodefense, Inc.,

No. 18-996, 2019 WL 2428670

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

iii

Ysleta Del Sur Pueblo v. Texas,

142 S. Ct. 1929 (2022) ................................ 1, 2, 7, 8

STATUTES

Family Smoking Prevention and

Tobacco Control Act of 2009,

Pub. L. No. 111-31, 123 Stat. 1776 ........................ 5

Food, Drug, and Cosmetic Act (FDCA)

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

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

FDCA § 916, 21 U.S.C. § 387p ........................... 3, 4

Cal. Health & Safety Code § 104559.5 ..................... 10

OTHER AUTHORITIES

RAI Services Co., Comment from RAI

Services Company (Aug. 3, 2022) ........................ 12

Tobacco Product Standard for Menthol

in Cigarettes, RIN 0910-AI60 .............................. 12

INTRODUCTION

This case warrants review for three reasons. First,

the Ninth Circuit’s holding conflicts with this Court’s

precedents and the reasoning of other circuits. Indeed,

this Court has “twice reversed” the Ninth Circuit for

doing exactly what it did here: “interpreting an

express preemption clause to allow states and

municipalities to defeat its entire purpose with a sales

ban.” R.J. Reynolds Tobacco Co. v. County of Los

Angeles, 29 F.4th 542, 561–62 (9th Cir. 2022) (“Los

Angeles”) (Nelson, J., dissenting) (citing Engine Mfrs.

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

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

(2012)), cert. denied 143 S. Ct. 979 (2023); see

Pet.App.1a (following Los Angeles). Nothing

California says resolves the conflict between the

decision below and Engine Manufacturers, National

Meat, and Ysleta Del Sur Pueblo v. Texas, 142 S. Ct.

1929 (2022). To the contrary, the Ninth Circuit makes

precisely the same textual errors as in those cases,

interpreting the term “standard” in a way that

nullifies both the preemption clause and the statutory

distinction between laws “prohibiting” and “relating

to” sales.

California likewise fails to reconcile the Ninth

Circuit’s reasoning with that of the First and Second

Circuits. See NATO v. City of Providence, 731 F.3d 71

(1st Cir. 2013); U.S. Smokeless Tobacco Mfg. Co. v.

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

the conflict with the Second Circuit’s decision is stark.

The Second Circuit held that state laws that dictate

tobacco

manufacturing

processes

would

preempted. But that is precisely what California’s

law does.

Second, this issue is exceptionally important.

Interpreting the TCA’s preemption provisions has

wide-ranging consequences because of the tobacco

industry’s size (something California cannot

minimize), and because states and localities continue

to impose conflicting standards on tobacco products.

Even on its own, California’s ban cuts off one of the

Nation’s largest markets for flavored tobacco

products. And tobacco aside, the Ninth Circuit’s

decision jeopardizes numerous other industries that

also rely on uniform, national standards. Although

California argues the TCA is unique, the core issue is

whether a state can end-run federal preemption

simply by styling its preferred standard as a sales

ban. If so, that holding applies in numerous other

tobacco and non-tobacco contexts as well.

Third, this case is an ideal vehicle, something

California does not dispute.

ARGUMENT

THE NINTH CIRCUIT’S HOLDING CONFLICTS WITH

THIS COURT’S PRECEDENTS AND THE REASONING

OF OTHER CIRCUITS

The decision below, which was controlled by Los

Angeles, conflicts with Engine Manufacturers,

National Meat, and Ysleta. Instead of addressing that

head-on, California leads with a plea to uncritically

treat this petition the same as the one in Los Angeles.

BIO 10–12. But circumstances have changed—with

California’s much broader ban taking effect and a

fourth court of appeals weighing in on the question

presented.

More importantly, however, the decision below

contravenes this Court’s caselaw and conflicts with

the reasoning of other circuits. California’s efforts to

reconcile these conflicts fail.

A. The Ninth Circuit’s interpretation of the

preemption clause contravenes this

Court’s precedents

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

refute California’s argument that “tobacco product

standards” are limited to how a product is

manufactured and that states can therefore enforce

their own standards at the point of sale. E.g., BIO 15.

a. California contends that Engine Manufacturers

does not control because it construed “markedly

different” language. BIO 14. But the relevant

language here is not different. Both the Clean Air Act

(Engine Manufacturers) and the TCA preempt

“standards.” Compare 21 U.S.C. § 387p(a)(2)(A), with

541 U.S. at 252. Neither statute defines “standard,” so

both require looking to the word’s plain meaning. 541

U.S. at 253. Engine Manufacturers’ key holding

therefore applies: “a standard is a standard even

when not enforced through manufacturer-directed

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

manufacturers are “free to produce flavored tobacco

products,” but “may not sell” them in California. BIO

15. Engine Manufacturers rejected an identical

argument: “The manufacturer’s right to [make

federally authorized products] is meaningless in the

absence of a purchaser’s right to buy them.” 541 U.S.

at 252, 255.

California nevertheless asserts that the Clean Air

Act’s preemption clause was absolute, whereas the

TCA’s preserves some state and local authority. BIO

13–14. This supposed distinction is illusory. The

Clean Air Act preempted standards: “It is . . .

impossible to find . . . an exception for standards

imposed through purchase restrictions rather than

directly upon manufacturers.” 541 U.S. at 256. And so

does the TCA. Nothing in the TCA’s preemption

clause exempts standards enforced at the point of

sale.

Nor does the TCA’s “preservation sandwich” change

what “standard” means. Los Angeles, 29 F.4th at 555;

see BIO 13. The preemption clause is an express

“[e]xcept[ion]” to the preservation clause, 21 U.S.C.

§ 387p(a)(1), meaning the preemption clause takes

precedence. And the savings clause saves a portion of

what already is preempted, meaning it cannot change

what the preemption clause covers in the first place.

Thus, these surrounding clauses neither change what

a “standard” is nor distinguish this case from Engine

Manufacturers.

b. The Ninth Circuit’s decision also flouts the

statutory text. Both sides agree that preemption

analysis “must be grounded ‘in the text and structure

of the statute.’” BIO 13. California’s problem is that

nothing in the TCA’s text limits “tobacco product

standards” to those enforced directly against

manufacturers. In fact, Congress crafted one of the

TCA’s two “[t]obacco product standards” (its ban on

certain characterizing flavors in cigarettes) to be

enforced at the point of sale. See 21 U.S.C.

§ 387g(a)(1)–(3). Congress thus plainly understood

that a ban enforced at the point of sale, much like

California’s here, is a “tobacco product standard.”

California nonetheless parrots the Ninth Circuit’s

view that other categories in the preemption clause

(e.g., modified risk tobacco product and labeling

requirements) implicitly cabin the meaning of

“tobacco product standards” because those other

categories target manufacturing. BIO 5. But Congress

specifically described a ban on characterizing flavors

as “a tobacco product standard,” so those other

categories are irrelevant. Regardless, they are not

limited to manufacturing. For example, a product is a

“modified risk tobacco product” if it “is sold or

distributed for use to reduce harm.” 21 U.S.C.

§ 387k(b)(1) (emphasis added). And courts have held

that a product’s website—which has nothing to do

with manufacturing—can amount to labeling. See

United States v. Innovative Biodefense, Inc., No. 18996, 2019 WL 2428670, at *4 (C.D. Cal. Feb. 22, 2019).

California also suggests (at 2–3, 5) that limiting

tobacco product standards to manufacturing is

consistent with one purpose of the TCA: setting

national manufacturing standards. But purpose

cannot override text. Moreover, California’s position

torpedoes another congressional purpose: “to continue

to permit the sale of tobacco products to adults.” TCA

§ 3(7), Pub. L. No. 111-31, 123 Stat. 1776, 1782 (2009).

In short, the Ninth Circuit’s artificial limitation of

“tobacco product standards” conflicts with Engine

Manufacturers and the TCA’s text.

2. The Ninth Circuit’s decision is irreconcilable with

this Court’s precedents, moreover, even if the TCA

were read to preempt only manufacturing standards.

That’s because National Meat held that even where a

preemption clause is limited to manufacturing

standards, a state cannot prohibit the sale of products

that depart from the state’s standard. 565 U.S. at 464.

Permitting a state to impose “a ban on the sale of [a

product] produced in whatever way the State

disapproved,” this Court explained, “would make a

mockery of the [federal statute’s] preemption

provision.” Id.

California claims (at 15) its sales ban differs from

the one in National Meat. But National Meat’s core

insight is that a state law banning the sale of a

product unless it is made a certain way “functions as

a command to [manufacturers] to structure their

operations” accordingly. 565 U.S. at 464. That’s just

what California’s ban does.

The State also argues (at 15) that National Meat is

irrelevant because the statute there did not contain a

savings clause. Wrong again. The TCA’s savings

clause cannot alter the preemption clause’s meaning.

The savings clause instead exempts from preemption

certain state laws that would otherwise fall within the

preemption clause’s scope. Thus, National Meat

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

[act’s] preemption clause, then any State could impose

any regulation on [tobacco products] just by framing

it as a ban on the sale of [products] produced in

whatever way the State disapproved. That would

make a mockery of the [act’s] preemption provision.”

565 U.S. at 464. The TCA likewise must preempt sales

bans to avoid rendering its preemption clause “a

mockery.”

B. The Ninth Circuit’s interpretation of the

savings clause contravenes this Court’s

precedents

Los Angeles’s alternative holding—that the savings

clause saves a ban like California’s—also conflicts

with this Court’s decisions and the TCA.

1. Ysleta underscored that “regulation” and

“prohibition” have independent meaning, especially

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

in the TCA, the similar phrases “requirements

relating to the sale” and requirements “prohibiting the

sale” must mean different things. And since the

savings clause only saves the former, the State’s ban

(a requirement prohibiting sales) cannot survive.

California brushes Ysleta aside because it “did not

even address a preemption question.” BIO 15. That is

immaterial. Both the TCA and the Ysleta statute

recognize a “dichotomy between prohibition and

regulation.” Ysleta, 142 S. Ct. at 1938. And the only

way to give that dichotomy meaning in the TCA is to

recognize that the savings clause does not save sales

prohibitions like California’s. Otherwise, the

statutory distinction between requirements “relating

to” and “prohibiting” sales is meaningless.

California leans heavily (at 15–16) on Ysleta’s

allowance that its analysis might not apply “in

another context.” Ysleta, 142 S. Ct. at 1938. But

California does not identify any contextual difference

that could justify ignoring Congress’s distinction

between prohibition and regulation in neighboring

sections of the TCA. See Collins v. Yellen, 141 S. Ct.

1761, 1782 (2021) (presuming that Congress “acts

intentionally” when it “includes particular language

in one section of a statute but omits it in another”).

That dichotomy is “the most striking feature” of the

text here, just as it was in Ysleta. 142 S. Ct. at 1938.

California refuses to defend the Ninth Circuit’s

assertion that upholding Congress’s distinction

between “requirements relating to” sales and

“prohibitions” of sales would be “inadministrable.” Los

Angeles, 29 F.4th at 559. For good reason. Such policy

appeals are better directed to Congress. As Ysleta

explained, when Congress adopts a distinction

between regulations and prohibitions, courts must

give it effect, regardless of whether it is difficult (in

some cases) to do so. See Ysleta, 142 S. Ct. at 1943–44;

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

(“That the line might be hard to draw in some

hypothetical future case is no reason to throw the

baby out with the bathwater.”). In any event,

upholding the TCA’s distinction presents no difficulty

here because there is no question that California’s ban

is a prohibition—it contains no exceptions.

At bottom, California makes no attempt to assign

independent meaning to both phrases; it must assume

that “relate to” and “prohibit” have the same meaning.

In Ysleta, Texas similarly “observe[d] that in everyday

speech someone could describe its laws as ‘prohibiting’

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

regulations are followed.” 142 S. Ct. at 1938. But this

Court found that “hard to see,” given that Congress

used both “regulate” and “prohibit.” Id. at 1938–39. So

too here. “[D]ifferences in language,” after all, “convey

differences in meaning.” Id. at 1939.

2. Finally, California doesn’t dispute that its

interpretation renders “individuals of any age” in the

savings clause superfluous. See Los Angeles, 29 F.4th

at 565 (Nelson, J., dissenting). That weighs further

against California’s interpretation. See Corley v.

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

C. The decision below conflicts with the

reasoning of other courts of appeals

The Ninth Circuit’s decision conflicts with the

reasoning of the First, Second, and Eighth Circuits.

Despite California’s suggestion otherwise (at 16–

17), the narrow scope of the laws in NATO and U.S.

Smokeless (both of which limited sales of certain

flavored tobacco products to tobacco bars) is highly

significant. “[T]he Second Circuit upheld a more

limited regulation that still allowed sales of flavored

tobacco, and just required that they take place in

tobacco bars.” Los Angeles, 29 F.4th at 564 (Nelson, J.,

dissenting). The First Circuit in NATO also upheld a

local sales restriction by distinguishing between

“blanket prohibition[s]” (like California’s law here)

and “regulation[s] ‘relating to’ sales,” explaining

“[t]his difference easily distinguishes National Meat.”

731 F.3d at 82.

The conflict with the Second Circuit is

particularly acute. That court explicitly reasoned “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 [state] ‘fram[ed] it as a ban on the sale of

[tobacco] produced in whatever way [it] disapproved.”

U.S. Smokeless, 708 F.3d at 434 (emphasis added)

(quoting Nat’l Meat, 565 U.S. at 464). That, however,

is precisely what California’s law does here. See Pet.

at 18 & n.4. California prohibits manufacturers from

“add[ing]” flavors “to a tobacco product during the

processing, manufacture, or packing of the tobacco

product” by banning the sale of such products. Cal.

Health & Safety Code § 104559.5(a)(2), (b)(1). Thus,

under the Second Circuit’s reasoning, California’s law

does, in fact, “command” tobacco manufacturers to

structure their manufacturing operations “in

accordance with locally prescribed standards.” That is

a flat-out conflict.

The Eighth Circuit’s recent decision adds to the

discord. It found two interpretations of the savings

clause in equipoise and upheld a local flavor ban by

relying on a “presumption against preemption”—a

presumption that the Ninth Circuit rejected. Compare

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

1170, 1176–77 (8th Cir. 2023) (per curiam) (applying

presumption), with Los Angeles, 29 F.4th at 553 n.6

(rejecting presumption). The Eighth Circuit thus

departed from the Ninth Circuit’s “focus . . . on the

meaning of the TCA’s text,” Los Angeles, 29 F.4th at

553 n.6, because it found the TCA “ambiguous,” City

of Edina, 60 F.4th at 1177.

This Court should resolve the entrenched conflict

among the four circuits to have addressed the

question presented.

II. THE QUESTION PRESENTED IS EXCEPTIONALLY

IMPORTANT

Nothing California offers undermines the

importance of the question presented. See Pet. 31–35.

California argues (at 10) that the Court should

decline review because it previously declined review

in Los Angeles and at a preliminary stage in this case.

See R.J. Reynolds Tobacco Co. v. Los Angeles, 143

S. Ct. 979 (2023) (denying certiorari); R.J. Reynolds

Tobacco Co. v. Bonta, 143 S. Ct. 541 (2022). But the

ban in Los Angeles applied in the unincorporated

areas of a single county. And the statewide case was

presented to this Court in an emergency, preliminary

posture. Today’s case, by contrast, concerns a

challenge to a ban in the Nation’s largest state, and it

arises after a final judgment. Additionally, since this

Court last confronted the question, the Eighth Circuit

weighed in, further tipping the scales in favor of

review.

California also argues (at 17–18) that the Ninth

Circuit’s holding will not reverberate through other

statutes that preempt state “standards” because they

do not mirror the TCA. In particular, California

highlights that other statutes do not contain

preservation or savings clauses. But as explained, the

preservation and savings clauses do not change the

meaning of “tobacco product standard” in the

preemption clause. And as this Court has held, a

standard is a standard no matter how it is enforced.

Engine Mfrs., 541 U.S. at 254. If California can evade

the TCA’s preemption clause by simply enforcing its

standard at the point of sale, then every state and

locality can similarly “make a mockery” of federal

preemption in other industries. National Meat, 565

U.S. at 464.

Relatedly, “tobacco product standards” extend

beyond flavors—they can cover any product

“property.” And localities are running roughshod over

uniform federal standards, imposing immense

regulatory costs and confusion where Congress has

preempted their involvement. Pet. 33–34. California

nowhere disclaims the ability to regulate all

properties of tobacco products. That power would

upend Congress’s design, and foreclosing it requires

this Court’s intervention sooner than later.

Finally, California unpersuasively disputes the

practical stakes. Fundamentally, the different

“practical implications” of banning sales in a single

county versus banning sales in the Nation’s most

populous State are plain. BIO 11. And there is no

merit to California’s suggestion (at 11–12) that FDA’s

proposal to ban menthol as a characterizing flavor in

cigarettes lessens the need for review. That “prospect”

is far from certain, BIO 12; see Tobacco Product

Standard for Menthol in Cigarettes, RIN 0910-AI60

(noting newly delayed target date for rule),

https://tinyurl.com/mr49vfbe;

indeed,

California

warns against relying on “speculation about potential

future regulatory actions” just a few pages later (at

18). And even if FDA’s regulation materializes, it

likely would not take effect anytime soon, if at all. See

RAI Services Co., Comment from RAI Services

Company (Aug. 3, 2022) (documenting the proposed

rule’s

many

serious

legal

flaws),

https://tinyurl.com/mrzkne43. Moreover, California

bans the sale of all flavored tobacco products, not just

menthol cigarettes, including even those flavored

products with FDA authorization. E.g., Pet. 9 & n.2.

III. THIS CASE PRESENTS AN IDEAL VEHICLE

California does not meaningfully dispute that this

petition presents an ideal vehicle. This important case

cleanly presents the core legal question, comes to this

Court from final judgment, and four circuit courts

have aired the question presented, rendering further

percolation unnecessary.

CONCLUSION

This Court should grant the petition.

December 12, 2023

Respectfully submitted,