The tobacco industry’s heaviest hitters are suing California in federal court over the state’s flavored vape ban, which they claim is too broad, unconstitutional and should not be enforced. Vape producers, such as Juul, have faced lawsuits over side effects such as lung and heart injury and seizures.

R.J. Reynolds Tobacco Company, Philip Morris USA Inc. and several of their subsidiaries and other companies filed the lawsuit against California Attorney General Xavier Becerra and San Diego County District Attorney Summer Stephan on Oct. 9 in U.S. District Court for the Southern District of California. They are asking the court to issue a preliminary injunction to stop the state from enforcing the ban while the case is litigated.

“In an overbroad reaction to legitimate public-health concerns about youth use of tobacco products, the state of California recently enacted the most draconian ban on tobacco products of any state in the nation,” the lawsuit says. But, the plaintiffs argue, the ban “strikes far broader than necessary, banning menthol cigarettes, menthol-flavored vapor products and myriad other flavored tobacco products manufactured and sold by” the plaintiffs.

An Overview of California’s Flavored Vape Ban

California lawmakers passed and Governor Gavin Newsom signed Senate Bill 793 into law earlier this year, banning the retail sale of flavored tobacco products – including vaping cartridges and menthol cigarettes – effective January 2021. The driving force behind the move was the troubling increase of teen vaping in recent years.

Experts have said teens and young people are often attracted to vaping because of the flavored products, especially those designed to mimic the taste of mints, candy and fruit. Cotton candy or strawberry lemonade flavored vape cartridges, for example, serve as a gateway, critics say, and since the cartridges can deliver much higher doses of nicotine than cigarettes, users can get hooked quickly.

The ban was heavily supported by the American Lung Association and the American Heart Association, according to a report by Forbes.

Under the flavored tobacco products ban, retailers who are found selling the outlawed items face fines of $250 per sale.

Big Tobacco’s Arguments Against the Ban

R.J. Reynolds and the other plaintiffs argue in their vape ban lawsuit that California’s ban could have the opposite effect of its intent. Those who are already regular users of flavored vape cartridges “maybe at risk for migrating back to cigarettes” to satisfy their cravings for nicotine, the big tobacco companies say.

“Not only is California’s law misguided, the sweeping ban is also preempted by federal law and therefore unconstitutional,” the vape ban lawsuit claims. The state’s new regulations are also in conflict with federal law and U.S. Food and Drug Administration regulations that allow the sale of some of the tobacco products – particularly menthol cigarettes – the Golden State is seeking to outlaw.

The plaintiffs also argue that the U.S. Tobacco Control Act allows only the federal government to regulate the sale of tobacco and tobacco products except in some instances of age-related restrictions.

An Overview of the Plaintiffs

The other companies listed as plaintiffs in the case are R.J. Reynolds subsidiaries American Snuff Company LLC and Santa Fe Natural Tobacco Company, Inc. as well as Philip Morris USA Inc. affiliates John Middleton Co. and U.S. Smokeless Tobacco Company LLC. Helix Innovations LLC, a company that produces oral nicotine pouches and Morija, LLC, which does business as Vapin’ the 619, a San Diego smoke shop, are also participating as plaintiffs.

Neighborhood Market Association, Inc., a non-profit industry trade association of family-owned retail shops and manufacturers in San Diego County, is also named as a plaintiff.

Other Recent Challenges Brought by Big Tobacco

R.J. Reynolds Tobacco Co. filed a similar lawsuit in U.S. District Court against Los Angeles County earlier this year over its countywide ban on flavored tobacco products. That lawsuit made nearly identical claims that the county law was in conflict with federal tobacco regulations and county lawmakers lacked the power to supersede the national policies on tobacco product sales.

U.S. District Judge Dale Fischer disagreed completely and dismissed the case, with prejudice, Aug. 7, according to the Southern California Record.

Last month, another federal judge, this time in Minnesota, threw out another flavored vape ban lawsuit brought by R.J. Reynolds against Edina, a suburb of Minneapolis. U.S. District Judge Patrick J. Schiltz ruled that Edina’s ban on the sale of flavored tobacco products is neither expressly nor by implication preempted by federal law.

The Flavored Vape Ban Lawsuit is R.J. Reynolds Tobacco Company, et al. v. Xavier Becerra, et al., Case No. 3:20-cv-01990 in the U.S. District Court for the Southern District of California.