Tobacco Manufacturers, Minneapolis Suburb Spar in 8th Circuit Over Flavor Ban

(CN) — The tobacco industry went to bat against a Minneapolis suburb before the Eighth Circuit Wednesday afternoon, arguing that the city of Edina’s ban on flavored tobacco products like menthol cigarettes is preempted by federal law. 

Edina, a wealthy suburb of about 52,000 people southwest of Minneapolis, enacted a ban on tobacco products with flavors other than tobacco in June of 2020, and was quickly sued by two convenience stores in the city and by tobacco giants, including the R.J. Reynolds Company. The businesses argued that Edina — whose name, pronounced Ee-dye-nuh and sometimes uh-dye-nuh by locals, was butchered several times throughout the hearing — had exceeded its authority under the federal Tobacco Control Act. 

U.S. District Judge Patrick Schiltz dismissed the tobacco sellers’ suit and denied their motion for a preliminary injunction last August, finding that the city’s ordinance was not a “requirement” under the act and therefore did not fall under its preemption clause. 

Former Solicitor General Noel Francisco, now with the national firm Jones Day, argued otherwise, saying that a prohibition on menthol or other flavored products was indeed a requirement placed on the tobacco industry. To find otherwise, he said, would effectively moot the law’s preemption clause.

“Under the city’s position, they’re not nullifying the preemption clause just with respect to tobacco standards, they’re nullifying the entire clause,” he said. 

That clause and a related saving clause, Francisco argued, allow cities to require licensure, raise age requirements or impose other regulations, but not ban any products.

“Whatever else you think of our position, it’s the only one,” he said, “that doesn’t lead down the road where we could be required to comply with the labeling requirements, content requirements… of every town, city and state around this country.”

“Under our interpretation, the city still has broad regulatory authority,” he said, saying that they could still raise age requirements or require licensure under the saving clause. “The one thing they can’t do is outright prohibit it.” 

U.S. Circuit Judges Jonathan Kobes, a Donald Trump appointee, Roger Wollman, a Ronald Reagan appointee, and Steven Colloton, a George W. Bush appointee, remained relatively quiet throughout the hearing, offering only occasional questions as to the attorneys’ interpretations of the two critical clauses. 

Arguing on behalf of the city, attorney David Kendall of the local firm Campbell Knutson said that wasn’t what the preemption clause is about.

“The preemption clause has to do with nationwide manufacturing standards, and not with local sales regulations,” he said. “There is no federal preemption in a vacuum, and inaction by the federal government is not equivalent to preemption.” 

In a brief and in oral arguments, Kendall argued that the saving clause applies. He pointed to another case R.J. Reynolds brought against the city of Providence, Rhode Island, for an ordinance prohibiting the sale of flavored tobacco products outside of smoking bars.

“This Court should join nearly every other court that has ruled on the matter in holding that regulation of the sale of a flavored tobacco product does not constitute an establishment of a tobacco product standard for manufacturing purposes,” he wrote. 

He pointed in court to recent moves by the Food and Drug Administration to tighten regulations on or prohibit the sale of menthol cigarettes as evidence that preemption wasn’t a concern. He also said the case was similar to the Tobacco 21 campaign, which pushed cities, including Edina and several of its neighbors, to adopt a minimum age of 21 for tobacco sales, eventually leading to the FDA to do so nationally in 2019. 

On rebuttal, Francisco took issue with the idea that the preemption clause applied only to nationwide manufacturing processes. He pointed to labeling as an example.

“Labeling also applies to statements that we make on our website. That has nothing to do with manufacturing,” he said shortly before the conclusion of the half-hour argument.

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