No one likes Big Tobacco, but two legal challenges could help current and future California vapers to continue to have access to flavored vape products.
Two of the largest tobacco companies in the United States have joined forces to fight SB 793, a bill signed into law in August 2020 which bans flavored tobacco products, including e-liquid flavors, in the State of California.
Big Tobacco essentially controls the majority of the vaping market due to their products availability in convenience and corner stores. RJ Reynolds owns Vuse Vapor and Philip Morris makes IQOS, heat not burn tobacco, as well as IQOS Mesh which is essentially a closed mesh vape pod system and STEEM a nic salt based product.
Altria, the parent company to Philip Morris purchased a controlling share of JUUL Labs. RJ Reynolds acquired a controlling interest in VapeWild in 2019, which has subsequently ceased operations before the PMTA deadline this year.
Big Tobacco Launches a Two Pronged Legal Battle
A Lawsuit and a Referendum Petition
About the Referendum Petition
The referendum needs to acquire 623,212 signatures within 90 days of the bill being enacted to qualify to be brought to California voters for a decision to keep or rescind the flavor ban.
From Public Health Law Center:
If the referendum qualifies for the ballot, the implementation of SB-793 would be suspended pending the outcome of the referendum. The referendum will occur on the next general election ballot held at least 31 days after the date the referendum qualifies. Since early voting in California begins on October 5 for the upcoming 2020 general election, the referendum would not qualify in time for the 2020 general election and would be placed on the 2022 general election ballot. As a result, if the referendum qualifies, SB-793 would be suspended until the referendum vote in the November 2022 general election. In other words, the state law prohibiting the sale of flavored tobacco products would have no effect for at least two years. If the voters approve the referendum in November 2022, SB-793 would take effect the fifth day after the Secretary of State certifies the election results. If the voters defeat the referendum, SB-793 will not become law. The referendum process, however, does not prevent local California jurisdictions from adopting and implementing their own flavored tobacco sales restrictions.
As early voting for the 2020 election has already begun, the California flavor ban could not take effect until at least after the election in November 2022 if the referendum is accepted by the state. This two year delay would give time for the second effort, the legal challenge to be fought in court.
A Legal Challenge to Overturn SB 793 (Flavor Ban)
From the Sacramento Bee:
Big Tobacco is taking the State of California to court in a bid to block SB 793 from going into effect.
In a complaint filed late last week, plaintiffs including tobacco giants R.J. Reynolds Tobacco Company and Philip Morris USA argue that the state’s newly passed ban on the sale of most flavored tobacco products was “an overbroad reaction to legitimate public-health concerns about youth use of tobacco products” and “the most draconian ban on tobacco products of any state in the nation.”
The plaintiffs argue further that the ban is unconstitutional on several grounds.
First, they argue that federal law supersedes state law, and the manufacture of tobacco “is subject to intensive regulation by the federal government.”
“In striking a balance between federal authority and state authority over the regulation of tobacco products, Congress expressly denied states the ability to promulgate any requirement relating to tobacco product standards that are different from or in addition to federal standards,” the complaint reads.
The plaintiffs also argue that the law unlawfully attempts to regulate manufacturers who are outside of the state borders, which they say is a violation of the Commerce Clause of the Constitution.
Finally, they argue that California “has no legitimate interest in enforcing its unconstitutional law.”
In addition to the complaint, the plaintiffs have also filed a request for a preliminary injunction to stop the law from going into effect on Jan. 1 while the courts sort it out.
This legal challenge could ultimately have nationwide implications, possibly ending up in front of the Supreme Court. A legal challenge such as this could take several years, which is why delaying the implementation until 2022 with voter's referendum is the legal strategy.