On Tuesday, the state’s voters overwhelmingly supported letting a two-year-old law take effect.
The company’s lawsuit is viewed by anti-smoking advocates as a tactic that could keep menthol cigarettes on the market longer.
R.J. Reynolds, the maker of Newport menthol cigarettes and top-selling vaping products, filed a federal lawsuit on Wednesday challenging California’s landmark ban on flavored tobacco, a day after voters overwhelmingly approved it.
The state law, signed by Gov. Gavin Newsom two years ago, would prohibit the sale of all flavored tobacco and vaping products within weeks, undercutting a sizable part of sales for Reynolds and other tobacco companies. Reynolds is seeking an injunction to keep the law from taking effect.
Supporters of the ban denounced the company’s latest move. “This is a corporation that sells deadly products trying desperately to overcome the will of the people of the state of California — manipulating the legal system in an attempt to undo democracy,” said Desmond Jenson, a senior lawyer in tobacco control programs at the Public Health Law Center.
Reynolds, which is also the maker of Vuse, a popular vaping device, did not immediately respond to requests for comment on the lawsuit.
After the companies’ defeat on the ballot, Reynolds’s lawsuit renews an industry argument that local and state governments do not have the right to challenge federal law under the Tobacco Control Act, which gives the Food and Drug Administration the authority to regulate tobacco.
The argument was rejected by the U.S. Court of Appeals for the Ninth Circuit, which ruled against Reynolds in March, after the company sought to overturn Los Angeles County’s ban on flavored tobacco products. Reynolds is trying to appeal the decision to the U.S. Supreme Court.
California would be the second state, after Massachusetts, to impose a ban on all flavored tobacco; the sale of menthol cigarettes would be prohibited as well. Other states, Rhode Island, New York and New Jersey, have outlawed flavored vaping products, as have numerous cities and counties, in an attempt to thwart teenagers from taking up the addictive habit. So far, legal challenges to those bans have failed.
“Flavors attract youth, and the tobacco industry has long recognized that if they don’t get them young, they will go on to lead healthy, tobacco-free lives,” said Erika Sward, vice president for advocacy at the American Lung Association. “Menthol unfortunately is a gateway cigarette, and kids who experiment with menthol cigarettes are much more likely to go on to become regular smokers.”
Other plaintiffs in the lawsuit include Modoral, which makes flavored nicotine lozenges called Velo, and Neighborhood Market Association, a San Diego trade group that represents vape shops and others.
“Time and time again, Big Tobacco has attempted to steam roll state efforts to protect our youngest residents from the damaging effects of tobacco use,” Rob Bonta, California’s attorney general, said in a statement. “While we have not yet been formally served with the lawsuit, we look forward to vigorously defending this important law in court.”
Spending this year to promote Proposition 31, the ballot initiative on the state’s law, totaled $29 million in support of the ban, eclipsing that of the opposition, which amounted to $2 million in 2022, according to records from the California secretary of state’s office. The bulk of the funding to support the ban came from Michael Bloomberg, the former mayor of New York who has long backed antismoking measures and other public health initiatives.
Reynolds’s share of menthol cigarette sales in the United States is nearly 60 percent, according to an estimate by Bonnie Herzog, a research director at Goldman Sachs.
On Tuesday, Reynolds unveiled new ads for its Camel brand, showing “crush oasis” and another non-menthol cigarette type “offering a crisp smoking experience.” The ads specifically referred to the California ban, saying: “We know it’s tough. That’s why we crafted two new non-menthol styles for you to choose from.”
In April, the F.D.A. announced that it would move toward a measure banning sales of menthol cigarettes, but it could be years for such a significant public health initiative to be put in place.
Menthol bans would significantly affect Black smokers, nearly 85 percent of whom reported in a government survey that they favored menthol cigarettes, compared with 29 percent of white smokers. The agency is evaluating tens of thousands of comments that poured in over its proposal and is expected to issue a rule on it next year.
The agency is in the process of reviewing scores of applications filed by companies to allow them to keep products on the market and says it has denied more than a million requests. In the meantime, the F.D.A. has struggled to keep outlawed products like flavored vapes with synthetic nicotine off the market.
Vaping among adolescents reached a peak in 2019, according to annual government surveys, and is now in decline. Earlier this year, about 16 percent of high school students reported that they had vaped in the previous 30 days. The F.D.A. has yet to reach a final decision on whether Juul Labs, which was widely blamed for fueling the teenage vaping crisis, can remain on the market.
The F.D.A. has authorized sales of Vuse, the vaping device made by Reynolds. Nearly 24 percent of vaping adolescents named Vuse as their favored product; Puff Bar, preferred by about 30 percent, was the leading brand.
Christina Jewett – New York Times – 2022-11-10.
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