Supreme Court Rejects Appeal on California's Flavored Vape and Tobacco Ban

The Supreme Court has opted not to review a legal challenge against California's voter-endorsed prohibition of flavored vapes and tobacco products. The California legislation restricts the in-person sale of most nicotine items, allowing only tobacco-flavored alternatives.

This flavor ban, endorsed by California voters on November 8, 2022, faced immediate opposition from various R.J. Reynolds-associated tobacco and vapor companies, as well as San Diego-based retailers and a vape shop. These entities, contending a violation of constitutional supremacy and commerce clauses, argued in federal court that the ban constituted the state establishing a tobacco product standard—an authority they believed rested solely with the FDA under the 2009 federal Tobacco Control Act.

Despite both the District Court for the Southern District of California and the Ninth Circuit Court of Appeals dismissing Reynolds' requests for temporary and pending appeal injunctions, Reynolds sought an emergency injunction from the Supreme Court. This was an attempt to halt the law's enforcement while the lawsuit unfolded. However, on December 12, just a month after voters ratified the ban, the Supreme Court summarily denied Reynolds' application. Consequently, the flavor ban took effect on December 21.

Reynolds persevered with the lawsuit, suffering defeats in the district court and the subsequent Ninth Circuit appeal. Today's action by the Supreme Court marks the conclusion of Reynolds' efforts to reverse these legal setbacks.

Notably, California and Massachusetts stand as the sole U.S. states with comprehensive bans on both flavored vapes and menthol cigarettes. The Supreme Court's refusal to grant an injunction for Reynolds is not the first instance; in February of the prior year, the Court also declined to hear Reynolds' appeal regarding a lawsuit challenging a similar flavored vape ban in Los Angeles County. This case, mirroring Reynolds' arguments against the statewide law, served as a precedent for lower federal courts when they rejected the broader challenge.

The California flavor ban encompasses nicotine-free e-liquid and "flavor enhancers," extending to potential FDA-approved flavored vape products. Additionally, it encompasses flavored nicotine pouches, smokeless tobacco, and most flavored combustible tobacco, excluding hookah tobacco, pipe tobacco, and premium cigars.

It is crucial to note that the legislation does not prohibit online sales of flavored vapes. However, the complex landscape of other California state and local laws makes online sales within the state a challenging process for retailers.

In summary, California and Massachusetts remain at the forefront with comprehensive bans on both flavored vapes and menthol cigarettes. While three other states—New Jersey, New York, and Rhode Island—have implemented flavored vape bans, they have not extended these restrictions to menthol cigarettes.