R.J. Reynolds Tobacco Company v. County of Los Angeles ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R.J. REYNOLDS TOBACCO COMPANY; No. 20-55930
AMERICAN SNUFF COMPANY; SANTA
FE NATURAL TOBACCO COMPANY, D.C. No.
INC., 2:20-cv-04880-
Plaintiffs-Appellants, DSF-KS
v.
OPINION
COUNTY OF LOS ANGELES; COUNTY
OF LOS ANGELES BOARD OF
SUPERVISORS; HILDA L. SOLIS;
MARK RIDLEY-THOMAS; SHEILA
KUEHL; JANICE HAHN; KATHRYN
BARGER, each in his or her official
capacity as a member of the Board
of Supervisors,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted October 19, 2021
Pasadena, California
Filed March 18, 2022
2 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
Before: Ryan D. Nelson and Lawrence VanDyke, Circuit
Judges, and Karen E. Schreier, * District Judge.
Opinion by Judge VanDyke;
Dissent by Judge Nelson
SUMMARY **
Preemption / Tobacco Control Act
The panel affirmed the district court’s dismissal of an
action brought by tobacco companies, alleging that the
Family Smoking Prevention and Tobacco Control Act
(“TCA”) preempts the County of Los Angeles’s ban on the
sale of all flavored tobacco products.
The panel held that the TCA authorizes the Food and
Drug Administration to regulate tobacco products and
expressly preempts some contrary state or local regulations,
while also expressly preserving and saving from preemption
other state and local regulatory authority over tobacco. The
panel held that the TCA’s text, framework, and historical
context reveal that it carefully balances federal and local
power by carving out the federal government’s sole authority
to establish the standards for tobacco products, while
preserving state, local, and tribal authority to regulate or ban
altogether sales of some or all tobacco products.
*
The Honorable Karen E. Schreier, United States District Judge for
the District of South Dakota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 3
The panel wrote that the TCA’s “unique tripartite
preemption structure” governed its analysis. The TCA
includes a “preservation clause,” which preserves state,
local, and tribal power to enact any regulation concerning
tobacco products that is “in addition to or more stringent”
than those promulgated by the TCA. The TCA’s preemption
clause reads as follows: “No . . . political subdivision of a
State may establish or continue in effect with respect to a
tobacco product any requirement which is different from, or
in addition to, any requirement under the provisions of [the
TCA] relating to tobacco product standards, premarket
review, adulteration, misbranding, labeling, registration,
good manufacturing standards, or modified risk tobacco
products.” An immediately following savings clause
instructs that the preemption clause “does not apply to
requirements relating to the sale, distribution, possession,
information reporting to the State, exposure to, access to, the
advertising and promotion of, or use of, tobacco products by
individuals of any age, or relating to fire safety standards for
tobacco products."
The panel held that, properly understood, the TCA’s
preemption clause does not preclude non-federal sales
regulations such as the County’s sales ban. But even if it
did, the County’s sales ban would nonetheless be exempted
from preemption because it falls within that clause’s text as
an allowed local requirement relating to the sale of tobacco
products. Either way, the TCA does not expressly preempt
the County’s sales ban. The panel also held that, because the
TCA explicitly preserves local authority to enact more
stringent regulations than the TCA, the County’s sales ban
does not pose an impermissible obstacle to the TCA’s
purposes or objectives regarding flavored tobacco.
Accordingly, the County’s sales ban is neither expressly nor
impliedly preempted.
4 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
Dissenting, Judge R. Nelson wrote that because Los
Angeles’s ban falls within the TCA’s preemption clause and
is neither preserved nor saved, he would hold that it is
expressly preempted. Judge R. Nelson wrote that the ban
fell within the preemption clause because it was a
requirement different from or in addition to any TCA
requirement relating to tobacco product standards, which can
relate both to manufacturing and to sales. Judge R. Nelson
wrote that, by its terms, the preservation clause does not
apply to the preemption clause, but rather clarifies that no
other provision of the statute has any preemptive effect and
that the authorities of federal agencies and Indian tribes are
not preempted by the TCA. Finally, Judge R. Nelson would
hold that the savings clause only saves for states the
authority to enact age requirements.
COUNSEL
Noel J. Francisco (argued), Christian G. Vergonis, Ryan J.
Watson, and Andrew J. M. Bentz, Jones Day, Washington,
D.C.; Jason C. Wright, Jones Day, Los Angeles, California;
for Plaintiffs-Appellants.
Kent R. Raygor (argued) and Valerie E. Adler, Sheppard
Mullin Richter & Hampton LLP, Los Angeles, California,
for Defendants-Appellees.
Cory L. Andrews and John M. Masslon II, Washington
Legal Foundation, Washington, D.C., for Amicus Curiae
Washington Legal Foundation.
Rob Bonta, Attorney General; Renu R. George, Senior
Assistant Attorney General, Nicholas M. Wellington and
James V. Hart, Supervising Deputy Attorneys General; Peter
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 5
F. Nascenzi, Deputy Attorney General; Office of the
Attorney General, Sacramento, California; for Amicus
Curiae State of California.
Jordan Raphael, Byron Raphael LLP, Los Angeles,
California; Dennis A. Henigan, Campaign for Tobacco-Free
Kids, Washington, D.C.; for Amici Curiae Public Health and
Medical Organizations.
Rachel Bloomekatz, Columbus, Ohio, for Amici Curiae
Public Health Law Center, Action on Smoking and Health,
California State Association of Counties, ChangeLab
Solutions, International City/County Management
Association, International Municipal Lawyers Association,
Legal Resource Center for Public Health Policy, National
Association of Counties, National League of Cities, Public
Health Advocacy Institute, and U.S. Conference of Mayors.
6 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
OPINION
VANDYKE, Circuit Judge:
I. INTRODUCTION
Until just over a decade ago, tobacco products were
regulated almost exclusively by the states and local
governments, with little federal involvement. Then
beginning in the late 1990’s, the U.S. Food and Drug
Administration first sought to exert federal regulatory
authority over such products. This initial attempt was
swiftly rebuffed by the Supreme Court, which concluded the
FDA lacked that authority under then-existing statutes. See
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
126 (2000). In response, Congress passed the Family
Smoking Prevention and Tobacco Control Act (“TCA”),
Pub. L. No. 111–31, 123 Stat. 1776 (2009), codified at
21 U.S.C. § 387 et seq., which authorized the FDA to
regulate tobacco products and expressly preempted some
contrary state or local regulations, while also expressly
preserving and saving from preemption other state and local
regulatory authority over tobacco.
The boundary between the TCA’s preemption clause and
its preservation and savings clauses is the subject of the
dispute in this case. The County of Los Angeles claims that
the TCA’s preservation and savings clauses permit its
decision to ban the sale of all flavored tobacco products.
Predictably, multiple tobacco companies have challenged
the County’s ban, arguing that the TCA’s preemption clause
both expressly and impliedly preempts the ban.
The TCA’s unique tripartite preemption structure
governs our analysis of these issues. Its text, framework, and
historical context reveal that it carefully balances federal and
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 7
local power by carving out the federal government’s sole
authority to establish the standards for tobacco products,
while preserving state, local, and tribal authority to regulate
or ban altogether sales of some or all tobacco products.
Properly understood, the TCA’s preemption clause does not
preclude non-federal sales regulations such as the County’s
sales ban challenged in this case. But even if it did, the
County’s sales ban would nonetheless be exempted from
preemption by the TCA’s savings clause because it easily
falls within that clause’s text as an allowed local
“requirement[] relating to the sale . . . of[] tobacco
products.” 21 U.S.C. § 387p(a)(2)(B). Either way, the TCA
does not expressly preempt the County’s sales ban. And
given that the TCA explicitly preserves local authority to
enact “more stringent” regulations than the TCA, the
County’s sales ban does not pose an impermissible obstacle
to the TCA’s purposes or objectives regarding flavored
tobacco. It is therefore neither expressly nor impliedly
preempted, and we affirm the district court.
II. BACKGROUND
1. States and Localities Historically Possessed Broad
Power to Regulate and Ban Tobacco Products.
The TCA’s tripartite preemption provision can be
properly understood only against the historical backdrop of
states and localities’ longstanding role as the primary
regulators of tobacco products. See Stewart v. Dutra Const.
Co., 543 U.S. 481, 487 (2005) (interpreting a federal statute
by looking to the “backdrop against which Congress” acted).
Over a century ago, the Supreme Court first recognized that
states, because of public health concerns, could prohibit the
sale of cigarettes. See Austin v. State of Tennessee, 179 U.S.
343, 348–49 (1900) (“[W]e think it within the province of
the legislature to say how far [cigarettes] may be sold, or to
8 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
prohibit their sale entirely . . . provided no discrimination be
used . . . and there be no reason to doubt that the act in
question is designed for the protection of the public
health.”). In the intervening century, and in response to
growing awareness of the harmful effects of cigarettes,
Congress enacted various statutory provisions focusing on
consumer education through advertising and labeling
requirements. See, e.g., Federal Cigarette Labeling and
Advertising Act (“FCLAA”), Pub. L. No. 89–92, 79 Stat.
282 (1965) (codified as amended at 15 U.S.C. §§ 1331–
1341), see also Graham v. R.J. Reynolds Tobacco Co.,
857 F.3d 1169, 1186–87 (11th Cir. 2017) (en banc)
(surveying the development of federal tobacco laws). 1 But
these federal statutes never preempted state and localities’
traditional power to restrict or ban sales of tobacco products.
See id.During this period, states also played key roles in
indirectly regulating tobacco products through litigation. In
the 1990s, after numerous heads of major tobacco companies
denied under oath the addictiveness of nicotine, several
1
See also Public Health Cigarette Smoking Act of 1969, Pub. L. No.
91–222, 84 Stat. 87; Alcohol and Drug Abuse Amendments of 1983,
Pub. L. No. 98–24, 97 Stat. 175; Comprehensive Smoking Education Act
of 1984, Pub. L. No. 98–474, 98 Stat. 2200 (1984); Comprehensive
Smokeless Tobacco Health Education Act of 1986, Pub. L. No. 99–252,
100 Stat. 30. While “the ADAMHA Reorganization Act, Pub. L. No.
102-321, 106 Stat. 323 (1992), condition[ed] certain block grants on
states making it unlawful for any manufacturer, retailer, or distributor of
tobacco products to sell or distribute any such product to any individual
under the age of 18,” Graham, 857 F.3d at 1187 (citation and internal
quotation marks omitted), the strings attached to federal grants did not
preempt state or local authority from regulating the sale or ban of these
products; quite the opposite, they strongly incentivized states to exercise
their traditional authority over tobacco-related sales. See 42 U.S.C.
§ 300x-26.
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 9
states sued their companies. See Regulation of Tobacco
Products (Part 1): Hearings Before the Subcomm. on Health
& the Env’t, 103d Cong. 628 (1994); Barry Meier,
Remaining States Approve the Pact on Tobacco Suits, N.Y.
TIMES, Nov. 21, 1998, at A1. The lawsuits resulted in a
“landmark agreement” between the tobacco companies and
the states, where the companies agreed to monetary
payments and permanent injunctive relief. See Lorillard
Tobacco v. Reilly, 533 U.S. 525, 533 (2001).
Meanwhile, states continued to enact laws regulating the
sale and use of cigarettes and tobacco products, including
imposing numerous restrictions on tobacco sales. 2 These
restrictions included, for example, prohibitions on sales of
tobacco products in vending machines and near schools. See
Paul A. Diller, Why Do Cities Innovate in Public Health?
Implications of Scale and Structure, 91 Wash. U. L. Rev
1219, 1231–35 (2014) (discussing state and local bans of
flavored cigarettes passed before the TCA). Some localities
even banned sales of cigarettes and vape products entirely
from retail stores. See, e.g., Manhattan Beach, Cal.,
Ordinance 20-0007. Because the FDA lacked authority to
regulate tobacco products until Congress enacted the TCA
2
See, e.g., Stop Tobacco Access to Kids Enforcement (“STAKE”)
Act, 1994 Cal. Stat. 1009 (codified at Cal. Bus. & Prof. Code §§ 22950–
64) (including mandates such as “no cigarette or tobacco product shall
be sold, offered for sale, or distributed from a vending machine or
appliance, or any other coin or token operated mechanical device
designed or used for vending purposes, id. § 22960(a)); see also
Cigarette and Tobacco Products Licensing Act of 2003 (codified at Cal.
Bus. & Prof. Code §§ 22970–22995) (requiring licensing throughout the
distribution chain from manufacturer to retailer); Cal. Rev. & Tax. Code
§§ 30131–30131.6 (significantly increasing the state’s cigarette and
tobacco taxes to fund, in part, anti-smoking efforts).
10 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
in 2009, 3 the history of tobacco regulation is, until recently,
one of state and local action.
2. The TCA Continued to Preserve State and Local
Power Over Tobacco Sales.
Given this extensive background of state and local
tobacco regulation, it would have been surprising if
Congress had broadly jettisoned the longstanding tradition
of states and localities’ role in the regulation of sales of
tobacco products when it enacted the TCA in 2009. The text
of the TCA itself demonstrates that it did not. Instead,
Congress made an “explicit decision to preserve for the
states a robust role in regulating, and even banning, sales of
tobacco products.” U.S. Smokeless Tobacco Mfg. Co. v. City
of New York, 708 F.3d 428, 436 (2d Cir. 2013).
Specifically, the TCA sought to “authorize the [FDA] to
set national standards controlling the manufacture of
tobacco products and the identity, public disclosure, and
amount of ingredients used in such products.” Pub. L. No.
111-31, 123 Stat. 1778 (2009) (emphasis added). In doing
so, the TCA balances state and federal power over tobacco
regulation by way of a unique three-layered preservation
provision. 4 The first clause of the provision, labeled the
3
See R.J. Reynolds Tobacco Co. v. City of Edina, 482 F. Supp. 3d
875, 880–81 (D. Minn. 2020) (observing that the TCA “was partly a
response to the FDA’s earlier unsuccessful attempt to assert jurisdiction
over tobacco products in order to enact age-specific tobacco regulations”
(citing Brown & Williamson Tobacco Corp., 529 U.S. at 125–26)); see
also U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp.
2d 329, 336 (S.D.N.Y. 2010) (same).
4
Because this is a case about preemption, it is easy to refer to
21 U.S.C. § 387p of the TCA as a “preemption provision.” But it is more
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 11
preservation clause, broadly preserves state, local, and tribal
power to enact any regulation concerning tobacco products
that is “in addition to or more stringent” than those
promulgated by the TCA:
Except as provided in [the preemption
clause], nothing in this subchapter, or rules
promulgated under this subchapter, shall be
construed to limit the authority of a . . .
political subdivision of a State . . . to enact,
adopt, promulgate, and enforce any law, rule,
regulation, or other measure with respect to
tobacco products that is in addition to, or
more stringent than, requirements established
under this subchapter, including a law, rule,
regulation, or other measure relating to or
prohibiting the sale, distribution, possession,
exposure to, access to, advertising and
promotion of, or use of tobacco products by
individuals of any age, information reporting
to the State, or measures relating to fire safety
standards for tobacco products. No provision
of this subchapter shall limit or otherwise
properly characterized as a “preservation provision.” While § 387p does
contain the preemption clause that forms the basis of Appellants’
challenge to the County’s ban (see id. § 387p(a)(2)(A)), that preemption
clause is sandwiched between two clauses that expressly preserve and
exempt from preemption broad non-federal regulatory authority over
tobacco products (see id. §§ 387p(a)(1), (a)(2)(B)). Indeed, even the title
of § 387p (“Preservation of State and Local Authority”) evinces its
predominant purpose to preserve rather than preempt non-federal
regulatory authority. This overall structure of the TCA’s “preservation
provision” cannot be overemphasized, and as discussed further below,
distinguishes the TCA’s preemption clause from dissimilar provisions in
other federal statutes considered by the Supreme Court.
12 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
affect any State, tribal, or local taxation of
tobacco products.
21 U.S.C. § 387p(a)(1) (emphasis added). Of particular
relevance here, the TCA expressly reserves localities’ ability
to enact any regulations “relating to or prohibiting the sale
. . . or use of tobacco products by individuals of any age.”
Id. 5
The TCA then immediately follows its broad
preservation clause with a preemption clause that expressly
overrides the preservation clause in the case of any conflict
between the two provision’s terms. The preemption clause
reads:
No . . . political subdivision of a State may
establish or continue in effect with respect to
a tobacco product any requirement which is
different from, or in addition to, any
requirement under the provisions of this
5
There is a scrivener’s error in both the TCA’s preservation and
savings clauses. Both clauses contain similar statements allowing non-
federal laws “relating to or prohibiting the sale . . . or use of tobacco
products by individuals of any age.” Id. § 387p(a)(1) (emphasis added);
see also id. § 387p(a)(2)(B) (similar). The drafters of these clauses used
the preposition “by” in the last prepositional phrase “by individuals of
any age,” presumably because the preposition “by” matches the closest
object (“use”) in the preceding series of objects (thus, “use . . . by
individuals of any age”). But while the preposition “by” makes sense for
some of the other objects in the series (e.g., “possession . . . by
individuals of any age”), it doesn’t make sense for others, such as “sale”
(it should be “sale . . . [to] individuals of any age”) or “advertising and
promotion” (“advertising and promotion . . . [to] individuals of any
age”). Correcting for this drafting error, we replace the word “by” with
a bracketed “[to]” in subsequent quotations in this opinion where
appropriate.
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 13
subchapter relating to tobacco product
standards, premarket review, adulteration,
misbranding, labeling, registration, good
manufacturing standards, or modified risk
tobacco products.
Id. § 387p(a)(2)(A) (emphasis added). While the TCA does
not explicitly define “tobacco product standards,” it uses that
phrase elsewhere in the TCA when referring to various
characteristics of tobacco products, such as “the
construction, components, ingredients, additives,
constituents . . . and properties of the tobacco products”
(among other references). See id. § 387g(a)(4)(B)(i). It also
uses the phrase broadly as encompassing some federal “sale
and distribution . . . restrict[ions],” id. § 387g(a)(4)(B)(v)—
including the federal ban on most flavored cigarettes, id.
§ 387g(a)(1)(A)—as well as tobacco labeling requirements.
Id. § 387g(a)(4)(C).
Immediately following the TCA’s preemption clause, a
savings clause then excepts various broadly defined
categories from preemption. See id. § 387p(a)(2)(B).
Specifically, the savings clause instructs that the preemption
clause
does not apply to requirements relating to the
sale, distribution, possession, information
reporting to the State, exposure to, access to,
the advertising and promotion of, or use of,
tobacco products by individuals of any age,
or relating to fire safety standards for tobacco
products.
Id. § 387p(a)(2)(B).
14 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
3. Los Angeles County Banned the Sale of Flavored
Tobacco Products.
In September 2019, as part of amendments to its business
licenses and health and safety code, Los Angeles County
joined at least three states and over 300 local jurisdictions
across the country by enacting a prohibition on the sale of
flavored tobacco products. The County’s ordinance reads:
[I]t shall be a violation of this Chapter for a
tobacco retailer/licensee or its agent(s) or
employee(s) to sell or offer for sale, or to
possess with the intent to sell or offer for sale,
any flavored tobacco product or any
component, part, or accessory intended to
impart, or imparting a characterizing flavor in
any form, to any tobacco product or nicotine
delivery device, including electronic
smoking devices.
LOS ANGELES COUNTY, CAL., CODE § 11.35.070(E) (2019);
see also CTFK, Fact Sheet (Oct. 23, 2020),
https://perma.cc/JGX3-3VZP. The ordinance defines
“flavored tobacco product” as “any tobacco product, as
defined in this Chapter, which imparts a characterizing
flavor.” Id. § 11.35.020(J). It further defines
“characterizing flavor” as “a taste or aroma, other than the
taste or aroma of tobacco, imparted either prior to or during
consumption of a tobacco product.” Id. § 11.35.020(C). The
ordinance therefore only permits the sale of tobacco products
with either the taste or aroma of tobacco, or no taste or aroma
at all. See id.
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 15
4. The District Court Dismissed Appellants’ Case.
Appellants R.J. Reynolds Tobacco Company, American
Snuff Company, LLC, and Santa Fe Natural Tobacco
Company, Inc. (Appellants) sued the County of Los Angeles
and various County officials (Appellees), alleging that the
TCA expressly and impliedly preempts the County’s
ordinance. The district court first denied Appellants’ motion
for a preliminary injunction, finding that they were not likely
to succeed on the merits of their claims. It then subsequently
granted Appellees’ Rule 12(b)(6) motion, incorporating the
reasoning from its denial of the preliminary injunction. It
also denied Appellants’ motion for summary judgment as
moot. Judgment was later entered, and Appellants appeal
that judgment.
III. JURISDICTION AND STANDARD OF REVIEW
“We have appellate jurisdiction under 28 U.S.C.
§ 1291.” Kashem v. Barr, 941 F.3d 358, 369 (9th Cir. 2019).
“A dismissal for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) is reviewed de novo.”
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). “We
[also] review de novo a district court’s application of
preemption principles.” U.S. Smokeless Tobacco Mfg. Co.,
708 F.3d at 432 (citation omitted).
IV. DISCUSSION
“The Supremacy Clause provides that the laws of the
United States ‘shall be the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.’” Gonzalez v. Arizona, 677 F.3d
383, 391–92 (9th Cir. 2012) (en banc) (quoting U.S. Const.
art. VI, cl. 2). “Under our system of dual sovereignty, courts
deciding whether a particular state law is preempted under
16 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
the Supremacy Clause must strive to maintain the delicate
balance between the States and the Federal Government,
especially when Congress is regulating in an area
traditionally occupied by the States.” Id. (citations and
internal quotation marks omitted).
The TCA’s text, framework, and historical context
reflect its attempt to strike such a balance. Its unique
preemption structure gives the federal government exclusive
power to set “tobacco product standards,” while preserving
state, local, and tribal authority to regulate or ban sales of
those products altogether. Consistent with this structure, it
would be a mistake to read “tobacco product standards” in
the TCA’s preemption clause so broadly as to encompass the
type of sales ban challenged in this case—particularly since
the TCA both expressly preserves and exempts from
preemption local authority over that exact type of regulation.
The preemption clause therefore does not cover the County’s
sales ban. But even if it did, the savings clause “saves” it
from preemption because a sales ban qualifies as a
“requirement[] relating to the sale” of tobacco products.
We therefore hold that TCA does not expressly preempt
the County’s sales ban. And given that Congress explicitly
preserved local authority to enact the very type of sales ban
at issue here, we also reject Appellants’ claim of implied
preemption.
1. The TCA Does Not Expressly Preempt the County’s
Sales Ban.
The TCA’s text, structure, and historical context
precludes express preemption in this case. “Where, as here,
Congress has specifically addressed the preemption issue,
our task is primarily one of interpreting what Congress has
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 17
said on the subject.” U.S. Smokeless Tobacco Mfg. Co.,
708 F.3d at 432. 6
We “begin with the wording of [the TCA’s preemption
provision], but we must also consider the statute as a whole
to determine whether the local ordinance actually conflicts
with the overall federal regulatory scheme.” Id. (citation
omitted); see also Brown & Williamson Tobacco Corp.,
529 U.S. at 133 (“It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.” (citation and internal quotation marks omitted)).
In interpreting statutes wholistically, we must strive to
6
The parties dispute whether a presumption against preemption
applies, but the Supreme Court has already determined that if a “statute
contains an express pre-emption clause, we do not invoke any
presumption against pre-emption but instead focus on the plain wording
of the clause, which necessarily contains the best evidence of Congress’
pre-emptive intent.” Puerto Rico v. Franklin California Tax-Free Tr.
(Franklin), 579 U.S. 115, 125 (2016) (citation and internal quotation
marks omitted); see also Int’l Bhd. of Teamsters, Loc. 2785 v. Fed. Motor
Carrier Safety Admin., 986 F.3d 841, 853 (9th Cir. 2021) (relying on
Franklin in determining that the existence of an express presumption
clause negated any presumption against preemption); Atay v. Cty. of
Maui, 842 F.3d 688, 699 (9th Cir. 2016) (same). Appellees argue that
these cases suggest that only unambiguous express preemption clauses
override the presumption. But this runs counter to Franklin, where the
majority and dissent’s debate over the scope of the preemption clause at
issue in that case demonstrates that it was not, in fact, unambiguous. See
579 U.S. at 135–37 (Sotomayor, J., dissenting). Appellees also rely on
two post-Franklin cases from our court that rely on the presumption of
preemption when evaluating an express preemption clause. See Miller
v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1021 (9th Cir. 2020);
California Ins. Guarantee Ass’n v. Azar, 940 F.3d 1061, 1067 (9th Cir.
2019). But the parties in both of those cases failed to address Franklin.
Pursuant to Franklin and our court’s application of Franklin, therefore,
our focus is on the meaning of the TCA’s text without any presumptive
thumb on the scale.
18 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
“giv[e] effect to each word and mak[e] every effort not to
interpret a provision in a manner that renders other
provisions of the same statute inconsistent, meaningless or
superfluous.” Shelby v. Bartlett, 391 F.3d 1061, 1064 (9th
Cir. 2004) (citation omitted). We also “assum[e] that the
ordinary meaning of that language accurately expresses the
legislative purpose.” Engine Mfrs. Ass’n v. S. Coast Air
Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (citation
omitted).
a. The Preemption Clause Doesn’t Cover the
County’s Sales Ban.
Applying these well-established principles, we first
conclude that the phrase “tobacco product standards” in the
TCA’s preemption clause does not encompass the County’s
sales ban.
We begin with the text of all three adjacent clauses—
preservation, preemption, and savings—considered
together. In § 387p of the TCA, the initial preservation
clause broadly preserves state, local, and tribal authority to
enact a variety of regulations that are “in addition to, or more
stringent than” the TCA’s requirements. See 21 U.S.C.
§ 387p(a)(1). While under the TCA the federal government
sets the regulatory floor, the plain text of the preservation
clause allows state, local, and tribal governments to go
beyond that, including even “prohibiting the sale . . . of
tobacco products [to] individuals of any age.” Id. (emphasis
added).
The subsequent preemption clause then carves out eight
limited exceptions to the preservation clause, each of which
relates most obviously to the production or marketing
stages—and not the retail sale—of tobacco products:
“tobacco product standards, premarket review, adulteration,
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 19
misbranding, labeling, registration, good manufacturing
standards, or modified risk tobacco products.” Id.
§ 387p(a)(2)(A). For example, the TCA describes
“adulteration” in terms of various issues that could arise
during the manufacturing or marketing stages. See id.
§ 387b. Similarly, “registration” requires that “every person
who owns or operates any establishment in any State
engaged in the manufacture, preparation, compounding, or
processing of a tobacco product or tobacco products shall
register with the Secretary the name, places of business, and
all such establishments of that person.” Id. § 387e(b)
(emphasis added). And to qualify as a “modified risk
tobacco product,” details about the manufacturing and
marketing processes must be provided. See id. § 387k(d).
While the TCA does not explicitly define “tobacco
product standards,” it describes that phrase in terms of the
manufacturing and marketing stages. See e.g.,
§ 387g(a)(4)(B)(i) (requiring tobacco product standards to
include, where appropriate, “provisions respecting the
construction, components, ingredients, additives,
constituents, including smoke constituents, and properties of
the tobacco product”). Consistent with its surrounding
categories, it makes sense to view “tobacco product
standards” in the TCA’s preemption clause as most naturally
referring to standards pertaining to the production or
marketing stages up until the actual point of sale. See Rizo
v. Yovino, 950 F.3d 1217, 1224 (9th Cir. 2020) (en banc)
(noting the “well-settled rule[] of statutory construction” that
“words grouped together should be given similar or related
meaning to avoid giving unintended breadth to the Acts of
Congress” (citation and internal quotation marks omitted)).
This is not to say that the phrase “tobacco product
standards” is incapable of being read more broadly. Since
20 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
the phrase is not defined by the TCA, it could in theory
conceivably encompass essentially anything and everything
related to tobacco products that might influence how they are
produced. For example, “tobacco product standards” could
encompass “labeling,” since how tobacco products must be
labeled will, no doubt, affect how they are produced. Indeed,
as noted above, the TCA itself “include[s]” labeling under
the “tobacco product standards” that the FDA is elsewhere
empowered to regulate. See id. § 387g(a)(4)(C).
But reading “tobacco product standards” in the
preemption clause so capaciously runs immediately into
several textual problems. First, the preemption clause itself
lists “labeling” as a separate preempted category, which
would be redundant if “tobacco product standards” in that
same clause was meant to have its broadest possible
interpretation.
Second, reading “tobacco product standards” as covering
any non-federal regulations that even indirectly affect such
standards would render much of the preceding preservation
clause a nullity. Every state or local regulation “relating to
or prohibiting the sale . . . of tobacco products” (preservation
clause) can be said to “relate to tobacco product standards”
(preemption clause) in some indirect way. If Congress had
meant to broadly preempt all such state and local sales
regulations or bans via the ambiguous “tobacco product
standards” language in the preemption clause, why would it
have “preserved” to states and localities that authority in the
very proceeding provision? In short, reading “tobacco
product standards” in the TCA’s preemption clause broadly
creates superfluity problems in both the TCA’s preemption
clause and its preservation clause, whereas reading “tobacco
product standards” in the preemption clause more narrowly
avoids these interpretive problems.
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 21
The savings clause immediately follows the preemption
clause and “except[s]” broad categories from preemption,
including “requirements relating to the sale . . . of[] tobacco
products [to] individuals of any age.” Id. § 387p(a)(2)(B).
In doing so, the TCA reinforces what it first established in
the preservation clause: that the regulation and prohibition
of tobacco product sales falls squarely within the purview of
states, localities, and tribal entities. The savings clause also
solidifies the narrower interpretation of “tobacco product
standards” discussed above. If “tobacco product standards”
was to be interpreted as broadly encompassing (and
therefore preempting) states and localities’ laws “relating to
or prohibiting the sale” of tobacco products, then one must
assume that Congress (1) included a superfluous
“preservation” of states and localities’ ability to regulate
sales, while simultaneously (2) taking away their ability to
do just that in the preemption clause, while also
simultaneously (3) giving back their ability to do just that in
the savings clause when it broadly “except[ed]” from the
preemption clause any state or local “requirements relating
to the sale” of tobacco products. That tortured path is
avoided only by reading the preemption clause’s “tobacco
product standards” as not reaching state and local sales bans.
In short, the TCA’s text sandwiches limited production
and marketing categories of preemption between clauses
broadly preserving and saving local authority, including any
“requirements relating to the sale” of tobacco products. This
unique “preservation sandwich” enveloping the TCA’s
preemption clause reveals a careful balance of power
between federal authority and state, local, and tribal
authority, whereby Congress has allowed the federal
government to set the standards regarding how a product
would be manufactured and marketed, but has left states,
localities, and tribal entities the ability to restrict or opt out
22 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
of that market altogether. We are not alone in reaching this
interpretation of the TCA’s unique preemption structure:
when evaluating whether the TCA preempted a local
ordinance prohibiting the sale of flavored tobacco products
except in tobacco bars, the Second Circuit similarly
determined that the TCA’s preemption provision
“distinguishes between manufacturing and the retail sale of
finished products; it reserves regulation at the manufacturing
stage exclusively to the federal government, but allows
states and localities to continue to regulate sales and other
consumer-related aspects of the industry in the absence of
conflicting federal regulation.” U.S. Smokeless Tobacco
Mfg. Co., 708 F.3d at 434.
This interpretation is consistent with the historical
“backdrop against which Congress” acted in enacting the
TCA. See Stewart, 543 U.S. at 487. As previously noted,
the states and localities have historically played a primary
role in regulating the sale of tobacco products. And after the
Supreme Court over a century ago explicitly ruled that states
have the power to opt out of the tobacco product market,
none of the subsequent federal enactments have stripped
localities of this power. The TCA effectively carves out
federal power from a historical body of state and local
authority by setting the floor for production and marketing
standards, while still preserving states and localities’ broad
power over regulation of the sales of those products. The
County’s sales ban fits comfortably within the historical
authority of states, localities, and tribal entities that Congress
clearly preserved in the TCA’s preservation sandwich.
Appellants’ arguments to the contrary are unpersuasive.
The crux of Appellants’ argument is that the County’s sales
ban qualifies as the “paradigmatic tobacco product standard”
and therefore falls under the preemption clause. But not only
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 23
does this interpretation contravene the TCA’s text,
framework, and historical context for the reasons just
articulated, it also nullifies key aspects of the preservation
clause and undermines the commonly understood meaning
of the phrase “product standard.”
First, as already discussed, interpreting “tobacco product
standards” to encompass the County’s sales ban at issue here
renders meaningless the preservation clause’s
“preservation” of localities’ authority to “prohibit sales.”
Under Appellants’ broad interpretation of “tobacco product
standards,” it is hard to imagine any sales prohibition—
which the preservation clause expressly preserves—that
would not be preempted under the preemption clause. It is
unlikely that Congress would purport to preserve something
for state and local authority, only to preempt it in the very
next provision. “Such a broad reading of the preemption
clause, which collapses the distinction between sales and
product regulations, would render superfluous [the
preservation statute]’s three-part structure, and in particular
would vitiate the preservation clause’s instruction that the
[TCA] not be ‘construed to limit the authority of a State or
political subdivision of a State to enact and enforce any
measure prohibiting the sale of tobacco products.’” U.S.
Smokeless Tobacco Mfg. Co., 708 F.3d at 434 (quoting
21 U.S.C. § 387p(a)(1)) (alteration marks omitted).
“Because statutes should be construed, if possible, to give
effect to every clause and word,” we agree with our sister
circuit and “adopt a narrower reading of the preemption
clause that also gives effect to the preservation clause.” Id.
(internal citations and alterations omitted).
Second, Appellants’ interpretation unnecessarily trades
the most common and natural understanding of “product
standards” for the broadest interpretation possible. While
24 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
there can be a relationship between product standards and
sales bans, we must not lose sight that they are, in fact,
different things. A total ban on all tobacco products would
not naturally be characterized as merely a “tobacco product
standard.” Compare Ban, Merriam-Webster’s Dictionary
Online, https://www.merriam-webster.com/dictionary/ban
(last visited Dec. 26, 2021) (“to prohibit especially by
legal means”), with Standard, Merriam-Webster’s
Dictionary Online, https://www.merriam-
webster.com/dictionary/standard (last visited Dec. 26,
2021) (“a level of quality, achievement, etc. that is
considered acceptable or desirable”); see also United States
v. Carter, 421 F.3d 909, 911 (9th Cir. 2005) (“[A]
fundamental canon of statutory construction is that, unless
otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.” (citation and
internal quotation marks omitted)); United States v. TRW
Rifle 7.62X51mm Caliber, One Model 14 Serial 593006,
447 F.3d 686, 689 (9th Cir. 2006) (recognizing “the common
practice of consulting dictionary definitions to clarify
[statutory terms’] ordinary meaning” (citation omitted)).
While regulations regarding the length or diameter of a
cigarette are easily considered a “product standard,” for
example, banning the sale of cigarettes over a certain length
or diameter is just as obviously not directly a regulation of a
tobacco product standard. It is merely banning the sale of a
certain type of tobacco product, not dictating how that
product must be produced.
It is true that the Supreme Court has repeatedly found
that a state or local sales ban can run afoul of the preemptive
force of a federal product standard, because in some cases
the sales ban undermined the federal standards protected by
broad federal preemption clauses. See Nat’l Meat Ass’n v.
Harris, 565 U.S. 452, 455 (2012); Engine Mfrs. Ass’n,
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 25
541 U.S. 246, 252 (2004). Appellants lean heavily on these
two cases, arguing that the County’s sales ban is similarly
doomed by the TCA’s preemption of state or local tobacco
product standards. But neither National Meat nor Engine
Manufacturers considered anything like the preservation
sandwich included in the TCA.
In National Meat, the Supreme Court held that the
Federal Meat Inspection Act (FMIA), which “regulates the
inspection, handling, and slaughter of livestock for human
consumption,” expressly preempted a California law that
prohibited the buying or selling of nonambulatory animals
(i.e., animals that cannot walk). 565 U.S. at 455, 458–59. 7
In doing so, the Court emphasized that “[t]he FMIA’s
preemption clause sweeps widely.” Id. at 459. It therefore
rejected the respondent’s attempted distinction between
sales bans and the meat production process. Instead, the
Court reasoned that “the sales ban . . . functions as a
command to slaughterhouses to structure their operations in
the exact way the remainder of [the California law]
mandates.” Id. at 464. “[I]f the sales ban were to avoid the
FMIA’s preemption clause,” it explained, “then any State
could impose any regulation on slaughterhouses just by
framing it as a ban on the sale of meat produced in whatever
way the State disapproved. That would make a mockery of
the FMIA’s preemption provision.” Id. Notably, nothing in
the FMIA’s preemption provision expressly preserved or
saved states or localities’ authority to regulate sales. See
7
While the FMIA’s preemption provision included a savings clause,
this clause did not save states’ ability to regulate sales. See id. at 458 n.3
(“The preemption provision also includes a saving clause, which states
that the Act ‘shall not preclude any State . . . from making requirement[s]
or taking other action, consistent with this [Act], with respect to any other
matters regulated under this [Act].” (quoting 21 U.S.C. § 678)).
26 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
21 U.S.C. § 678. And whereas the Supreme Court in
National Meat saw no distinction between a sales ban and
the production process in that case, in this case Congress has
statutorily recognized precisely that distinction when it
expressly preempted non-federal “tobacco product
standards,” while in the same statutory section expressly
preserved and exempted from preemption state and local
“requirements relating to . . . sale[s].”
Like it did in National Meat, the Supreme Court also
rejected an attempted distinction between general
production processes and sales bans when interpreting the
Clean Air Act (CAA)’s preemption provision in Engine
Manufacturers. 541 U.S. at 253–55. The CAA’s
preemption provision provided that “[n]o State or any
political subdivision thereof shall adopt or attempt to enforce
any standard relating to the control of emissions from new
motor vehicles or new motor vehicle engines subject to this
part.” 541 U.S. at 252 (quoting 42 U.S.C. § 7543(a)). The
local regulation challenged in Engine Manufacturers
“prohibit[ed] the purchase or lease by various public and
private fleet operators of vehicles that do not comply with
stringent emission requirements.” Id. at 248. The
respondents argued that the CAA’s preemption provision’s
reference to “standards” only referred to “a production
mandate that requires manufacturers to ensure that the
vehicles they produce have particular emissions
characteristics, whether individually or in the aggregate.”
Id. at 253 (citation and internal alteration omitted). But the
Court rejected this argument, reasoning in part that “[t]he
language of [the CAA’s preemption provision] is
categorical. It is . . . impossible to find in it an exception for
standards imposed through purchase restrictions rather than
directly upon manufacturers.” Id. at 256; see also id. at 255
(concluding that “treating sales restrictions and purchase
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 27
restrictions differently for pre-emption purposes” had “no
basis in the text of the statute”). The Court ultimately
“decline[d] to read into [the preemption provision] a
purchase/sale distinction that is not to be found in the text of
[the preemption provision] or the structure of the CAA.” Id.
at 255.
The TCA includes a fundamentally different preemption
provision than either of the provisions considered by the
Supreme Court in National Meat and Engine Manufacturers.
Neither of the federal statutes in those cases sandwiched
their preemption clause between preservation and savings
clauses that explicitly and repeatedly reiterated local
authority over product sales. Unlike the preemption
provisions considered in those cases—which the Supreme
Court characterized as “sweep[ing] widely” and
“categorical”—the TCA’s plain text distinguishes between
tobacco product standards and state or local regulation of the
final sale of tobacco products, preempting the former while
allowing the latter. National Meat and Engine
Manufacturers are inapposite and don’t control this case.
Rather than following precedent interpreting very different
federal statutory language, we must instead be guided by the
TCA’s unique text, framework, and history.
b. Alternatively, the Savings Clause Saves the
County’s Sales Ban from Preemption.
Even if we read “tobacco product standards” as broadly
as Appellants urge and therefore concluded that the County’s
sales ban fell within the text of the TCA’s preemption clause,
the ban would still be “except[ed]” from preemption by the
TCA’s savings clause. A ban on the sale of flavored tobacco
products is, simply put, a requirement that tobacco retailers
or licensees throughout the County not sell flavored tobacco
products. It therefore fits within the savings clause as a
28 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
“requirement[] relating to the sale . . . of[] tobacco products
[to] individuals of any age.” 21 U.S.C.A. § 387p(a)(2)(B).
Appellants nevertheless contend that the savings clause
doesn’t apply. They first argue that the savings clause only
saves sales requirements, not sales prohibitions, from
preemption. In support, they contrast the saving clause’s
omission of the phrase “or prohibiting” with the preservation
clause’s inclusion of that phrase. Compare id.
§ 387p(a)(2)(B) (“requirements relating to the sale . . . of[]
tobacco products”), with id. § 387p(a)(1) (“requirements . . .
relating to or prohibiting the sale . . . of tobacco products”)
(emphasis added). To give meaning to both phases,
Appellants argue, the saving clause’s omission of the word
“prohibiting” must mean that state and local governments
can broadly impose sales “requirements,” but must stop
short of “prohibiting” the sale of any tobacco products.
Appellants conclude by claiming that a holding otherwise
would render the preemption clause a “dead letter,” by
allowing states and localities the ability to indirectly regulate
tobacco product standards by simply banning any
disapproved products.
The problem with Appellants’ argument is that the
preemption clause also omits the word “prohibiting.” Like
the savings clause, the preemption clause simply references
“any requirement . . . relating to tobacco products
standards.” Id. § 387p(a)(2)(A). So if Appellants are correct
that § 387p draws a sharp distinction between “prohibitions”
versus mere “requirements relating to the sale . . . of[]
tobacco products,” then the plain text of the preemption
clause itself doesn’t preempt any tobacco product
“prohibitions.” See R.J. Reynolds Tobacco Co. v. City of
Edina, 482 F. Supp. 3d 875, 881-82 (D. Minn. 2020)
(rejecting the same argument on similar rationale); see also
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 29
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, No.
09-10511, 2011 WL 5569431, at *7 (S.D.N.Y. Nov. 15,
2011) (rejecting a similar argument and concluding that “as
the Preemption Clause is itself silent regarding sales
prohibitions, it seems far more likely that prohibitions are
preserved and never preempted, and therefore need never be
saved”), aff’d, 708 F.3d 428 (2d Cir. 2013).
Appellants attempt to avoid the textual import of their
argument by parsing out the preemption clause’s use of the
word “any,” such that the preemption clause’s reference to
“any requirement . . . relating to tobacco products standards”
means that it also includes prohibition-type requirements.
But aside from injecting an enormous amount of hidden
meaning into the word “any,” this argument runs into the
same problem as Appellants’ “tobacco products standards”
argument: if the preemption clause preempts all state and
local regulations prohibiting the sale of tobacco products,
then the preservation clause’s preservation of those exact
prohibitions is rendered entirely superfluous. Because “[w]e
avoid statutory interpretations that render entire sections of
the statute superfluous,” United States v. Leon H., 365 F.3d
750, 753 (9th Cir. 2004), we decline to assign different
meanings to the preemption and saving’s clause use of word
“requirement.”
Appellants’ the-County-may-regulate-but-not-prohibit-
sales argument would also create a hopelessly
inadministrable standard. Appellants concede that “state and
local governments retain their broad, traditional power to
regulate the sale of tobacco products”—which would
include “restrictions on where products may be sold (e.g.,
not near schools)”—but argue that the “one thing they
cannot do is prohibit the sale of those products.” But as other
courts have observed, “it would be nearly impossible to
30 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
distinguish a permissible ‘restriction’ from an impermissible
‘prohibition’” because “[n]early any regulation can be
characterized as a ‘prohibition,’ including the . . . restrictions
that [Appellants] contend are within the meaning of the word
‘requirement.’” City of Edina, 482 F. Supp. 3d at 881 n.4.
For example, a restriction on sales of tobacco products near
schools, which Appellants concede is permissible, can easily
be characterized as a prohibition of tobacco sales in a
specified area (which, by way of banning such sales only
throughout the County, is exactly what the County’s sales
ban does here). Or by way of another example, under
Appellants’ interpretation of the savings clause, a city could
impose a 105-year-old minimum age “requirement” for
purchases of flavored tobacco products, which would lead to
effectively the same result as the County’s sales ban.
Because “prohibitions” can almost always be practically
achieved by mere well-crafted partial “regulations,” it makes
little sense to interpret the savings clause as drawing the
amorphous line that Appellants urge. “We must avoid an
interpretation that would produce absurd results,” United
States v. LKAV, 712 F.3d 436, 444 (9th Cir. 2013) (citation
and internal quotation marks omitted), and the better
understanding is that Congress intended to allow the federal
government the sole authority to set tobacco product
standards, while retaining for states and localities their
longstanding authority to say: “not here.”
Nor is Appellants’ “dead letter” argument persuasive.
Even though the preemption clause does not preempt sales
bans, it’s hardly useless. It still preempts states from setting
actual product standards. A state cannot require tobacco
companies to make their products according to any particular
standard—only the federal government can do that. But a
state can place restrictions on the retail sale of a tobacco
product, including banning its sale altogether. In other
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 31
words, as noted above, the balance of power struck by the
TCA allows state and local governments to opt out of the
market, but it doesn’t allow them to otherwise set parameters
for that market that conflict with the federal government’s
tobacco product standards. That is the “delicate balance”
established by Congress in § 387p’s unique preservation
sandwich.
Appellants finally argue that the savings clause’s
reference to “individuals of any age” limits the scope of the
clause to age-based requirements. But “[a]s other courts
have noted, [Appellants]’ interpretation turns the plain
meaning of this phrase on its head.” City of Edina, 482 F.
Supp. 3d at 880. The actual text of the phrase reveals the
opposite of Appellants’ interpretation. “Of any age”
suggests that state and local governments are not limited to
enacting only age-based rules, but rather can enact
regulations for people “of any age”—in other words, for
everyone. See U.S. Smokeless Tobacco Mfg. Co., 703 F.
Supp. 2d at 345 (“Indeed, read literally, the saving clause
does not relate to the sale or distribution of tobacco products
to anyone at all—only by anyone—and that ‘anyone’ can be
a person of any age.”).
Appellants argue that this interpretation renders the
phrase superfluous, but it actually clarifies that states and
local governments are not limited to enacting regulations
tied to certain age ranges. This makes sense given the TCA’s
framework and historical context, where the TCA preserved
state, local, and tribal authority to enact regulations “in
addition to, or more stringent than, requirements . . . relating
to or prohibiting the sale . . . of tobacco products,” 21 U.S.C.
§ 387p(a)(1), and where the federal government had
previously attempted to assert jurisdiction over tobacco
products to enact age-specific tobacco regulations. See
32 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
Brown & Williamson Tobacco Corp., 529 U.S. at 125–26
(holding that FDA, which had promulgated regulations to
reduce tobacco use among children and adolescents, lacked
jurisdiction to regulate tobacco products). In other words,
the TCA expressly preserves local authority to enact more
stringent requirements than the federal government, which
had a history of attempting to target specific ages when
enacting tobacco regulations. Because the County banned
the sale of flavored tobacco products to all individuals “of
any age,” the savings clause squarely applies.
Appellants’ superfluity argument suffers from another
flaw, which is that adding “individuals of any age” to pretty
much any statutory text will in some respects always be
superfluous. For example, if a statute prohibits “driving cars
without a license,” adding “by individuals of any age” to the
prohibition technically does nothing because nothing in the
basic prohibition itself indicates it is age-limited. But a
legislature might add such “superfluous” language to the
prohibition if it is concerned that something about the history
of such prohibitions could tempt courts to read into the
prohibition an implicit age restriction. That best explains
why § 387p repeatedly clarifies that the powers preserved to
non-federal governments are not age-restricted, particularly
since so much historic tobacco product regulation has
involved age restrictions.
2. The TCA Does Not Impliedly Preempt the Sales Ban.
Finally, the TCA also does not impliedly preempt the
County’s sales ban. Appellants argue that the County’s sales
ban poses an obstacle to the FDA’s current judgment that
menthol cigarettes should remain on the market. “[O]bstacle
preemption occurs when a state law stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.” Chamber of Com. of United States
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 33
v. Bonta, 13 F.4th 766, 774 (9th Cir. 2021) (citation and
internal quotation marks omitted). With implied
preemption, “we start with the assumption that the historic
police powers of the States are not preempted unless that was
the clear and manifest purpose of Congress.” In re
Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod.
Liab. Litig., 959 F.3d 1201, 1212 (9th Cir. 2020) (citation
and internal quotation marks omitted). Courts also “give[]
great weight to Congress’ inclusion of a provision preserving
states’ enforcement authority.” Id. at 1213.
Here, while the TCA permitted the FDA to enact future
regulations upon making certain findings, see 21 U.S.C.
§ 387g(a)(3)(A)–(B), it did not mandate that certain tobacco
flavors must remain available for sale. And while the TCA
bans all cigarette flavors except menthol and tobacco, id.
§ 387g(a)(1)(A), it nowhere prohibits states from going
further. To the contrary, as discussed above, the
preservation clause explicitly allows states, localities, and
tribal entities to enact regulations “more stringent than” the
TCA’s requirements—including regulations “relating to or
prohibiting the sale . . . of tobacco products.” Id.
§ 387p(a)(1). Given that the TCA does not mandate that
certain flavors must remain available for sale, and expressly
preserves local authority to enact sales regulations more
stringent than the TCA, the County’s sales ban does not
“stand[] as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress” expressed
in the TCA. Chamber of Com. of United States, 13 F.4th
at 774 (citation omitted). It is therefore not impliedly
preempted.
V. CONCLUSION
For the reasons stated herein, the County of Los
Angeles’s ban on the sale of flavored tobacco products is
34 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
neither expressly nor impliedly preempted by the Tobacco
Control Act. The district court is AFFIRMED. 8
R. NELSON, Circuit Judge, dissenting:
Twice we have been reversed for interpreting an express
preemption clause to allow states and municipalities to
defeat its entire purpose with a sales ban. Still, the majority
thinks that this time is different, in particular because this
statute has a preservation clause and a savings clause. But
those clauses can’t get the majority where it needs to go. The
Tobacco Control Act’s (TCA’s) preservation clause does not
limit the preemption clause at all. Instead, it clarifies that no
other section of the statute (or regulation promulgated under
it) has a preemptive effect and that federal agencies
(including the armed forces) and Indian tribes are unaffected
by the preemption clause. And the savings clause only
allows states to enact age bans. Because Los Angeles’s ban
falls within the preemption clause and is neither preserved
nor saved, I would hold that it is expressly preempted. 1
I
In the last two decades, the Supreme Court has twice
reversed us for failing to find California regulations
expressly preempted. Engine Mfrs. Ass’n v. S. Coast Air
Quality Mgmt. Dist., 541 U.S. 246 (2004); Nat’l Meat Ass’n
v. Harris, 565 U.S. 452 (2012). In Engine Manufacturers,
Los Angeles’s Air Quality Management District required
8
We GRANT Appellees’ unopposed request for judicial notice.
1
I agree with the majority that there is no presumption against
express preemption, and that the ban is not impliedly preempted.
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 35
public and private fleet operators to purchase cars which met
certain emission specifications. See 541 U.S. at 248–49.
The manufacturers sued and argued that the rule was
preempted by the Clean Air Act, see id., which says that
states cannot adopt “standard[s] relating to the control of
emissions from new motor vehicles,” 42 U.S.C. § 7543(a).
Los Angeles argued that a “standard” was only “a
production mandate” that required manufacturers to do
certain things, and thus that its purchase requirement was not
preempted because it was not a standard but a sales
regulation. 541 U.S. at 254–55. The Supreme Court soundly
rejected the argument, reasoning that “a standard is a
standard even when not enforced through manufacturer-
directed regulation.” Id. at 254. Los Angeles’s rule didn’t
regulate car manufacturers directly, but by banning the sale
of cars made in some ways, it effectively forced
manufacturers to make cars in certain other, state-approved
ways. Id. Even though it did not regulate manufacturers
directly, the Supreme Court held that it was a standard all the
same. Id.The Supreme Court built on this reasoning in National
Meat, 565 U.S. at 452–68. In that case, California banned
slaughterhouses from selling meat from animals that could
no longer walk. Id. at 455. Meat manufacturers argued that
the law was preempted by the Federal Meat Inspection Act
(FMIA), which prohibits states from adopting “requirements
within the scope of [the FMIA] with respect to premises,
facilities and operations of any establishment at which
inspection is provided under . . . [the FMIA] which are in
addition to, or different than those made under [the FMIA].”
Id. at 458; 21 U.S.C. § 678. California argued much Los
Angeles had in Engine Manufacturers—that its rule only
regulated sales, not manufacturing, and thus was not
36 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
preempted. Nat’l Meat, 565 U.S. at 463. The Supreme
Court again soundly rejected the argument.
Rather than read it as just an “incentive” or “motivator,”
as California had asked it to, the Court held that the sales ban
“instead functions as a command to slaughterhouses to
structure their operations in the exact way” provided for by
the law. Id. at 463–64. The Court further reasoned that if a
ban like this were not preempted, then “any State could
impose any regulation on slaughterhouses just by framing it
as a ban on the sale of meat produced in whatever way the
State disapproved,” which “would make a mockery of the
FMIA’s preemption provision.” Id. at 464.
Of course, these cases and this case each deal with a
different express preemption provision. But the import of
Engine Manufacturers and National Meat is clear. When
Congress expressly preempts state regulation, states can’t
get around Congress’s prohibition by disguising that type of
regulation as a sales ban.
II
Engine Manufacturers and National Meat require us to
hold that Los Angeles’s ban is covered by the preemption
clause. Still, the majority, relying on the TCA’s preservation
clause and savings clause, holds that this case is different. It
is not. I first explain why the ban is covered by the
preemption clause, and then explain why the ban is neither
preserved nor saved.
A
The TCA’s preemption clause provides that “[n]o State
or political subdivision of a State may establish or continue
in effect with respect to a tobacco product any requirement
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 37
which is different from, or in addition to, any requirement
under the provisions of [the TCA] relating to tobacco
product standards.” 21 U.S.C. § 387p(a)(2)(A). Whether
Los Angeles’s ban is preempted thus depends on whether it
is a requirement different from or in addition to any TCA
requirement relating to tobacco product standards. It is, and
the statute itself shows why.
The TCA provides that no cigarette shall have any
“artificial or natural flavor (other than tobacco or menthol).”
Id. § 387g(a)(1). In the same section, the statute then calls
this requirement a “tobacco product standard.” Id.
§ 387g(a)(2). Congress has spoken: Cigarettes cannot have
any flavors except tobacco and menthol, and that
requirement is a tobacco product standard. In other words,
a flavor ban is a tobacco product standard.
Los Angeles’s sales ban is also a ban aimed at flavors,
but it operates at the point of sale, rather than at the
manufacturing stage. So, if Los Angeles’s ban is not a
tobacco product standard, it must be because tobacco
product standards can relate only to manufacturing, and not
to sales.
The problem for Los Angeles is that the Supreme Court
has already rejected that argument. See Engine Mfrs.,
541 U.S at 254. The majority holds that tobacco product
standards are only about what can happen at the
manufacturing process, not afterwards. But that’s exactly
the argument that the Supreme Court has twice rejected. Of
course, the statute in Engine Manufacturers was not the
TCA. But it used the same term—“standard”—and just like
the statute at issue there, nothing in the TCA expressly limits
tobacco product standards to manufacturing.
38 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
So tobacco product standards can be aimed at the
manufacturing stage or the sales stage. The TCA itself
contains a flavor ban aimed at the manufacturing stage and
calls it a tobacco product standard. That flavor ban is a
tobacco product standard, so Los Angeles’s ban of sales of
certain flavors must be a tobacco product standard, too.
Since Los Angeles’s ban is itself a tobacco product
standard, the only remaining question is whether Los
Angeles’s ban is a requirement with respect to a tobacco
product “which is different from, or in addition to, any
requirement under the provisions of [the TCA] relating to
tobacco product standards.” 21 U.S.C. § 387p(a)(2)(A). It
is.
There’s no dispute that Los Angeles’s ban is different
from or in addition to the TCA’s flavor ban. And the TCA’s
flavor ban is related to tobacco product standards, because it
is one. So our inquiry is limited to whether Los Angeles’s
ban and the TCA’s tobacco product standard are
“requirements.” I would hold that they are, for three reasons.
First, the majority and Los Angeles both concede that the
sales ban is a requirement, for the purpose of the savings
clause, and I agree with the majority that the word should
keep the same meaning across different subsections.
Second, it would be incongruous to read the preemption
clause to cover all requirements relating in any way to
tobacco product standards, but then not to cover tobacco
product standards themselves. And third, National Meat
itself held that a sales ban can be a preempted requirement.
565 U.S. at 459–64.
Several other courts have interpreted these provisions of
the TCA. None of them have adopted the majority’s reading.
The majority reasons that it is “not alone” because the
Second Circuit adopted a similar analysis. Majority at 21–
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 39
22; see U.S. Smokeless Tobacco Mfg. Co. v. City of New
York, 708 F.3d 428, 434 (2d Cir. 2013). But the Second
Circuit upheld a more limited regulation that still allowed
sales of flavored tobacco, and just required that they take
place in tobacco bars. Id. at 431. That court did adopt a
version of the majority’s sales vs. manufacturing distinction,
but in doing so, it was careful to avoid implying that a
complete sales ban would be permissible. Id. at 436. I agree
with the Smokeless Tobacco court that a regulation of how
sales may take place is not a tobacco product standard. But
a flavor ban remains a preempted tobacco product standard
even if it operates at the point of sale. And the Edina court
forcefully rejected the majority’s analysis, reasoning that
courts adopting the manufacturing vs. sales distinction had
“provided little in the way of justification” and even
sometimes “little more than ipse dixit.” R.J. Reynolds
Tobacco Co. v. City of Edina, 482 F. Supp. 3d 875, 878
(D. Minn. 2020). I agree.
B
In reaching the opposite conclusion, distinguishing
Engine Manufacturers and National Meat, and holding that
Los Angeles’s ban is not covered by the preemption clause,
the majority first relies heavily on the preservation clause.
But the majority ignores the plain language of that clause.
By its terms, the preservation clause does not apply to the
preemption clause at all. Instead, it has three separate
functions, none of which affect the preemption clause.
First, the preservation clause begins with the words
“[e]xcept as provided in paragraph (2)(A),” which is the
preemption clause. The preservation clause then preserves
state authority from all sections elsewhere in the TCA. The
preemption clause has no qualifier. Because it is qualified
by the preemption clause, the preservation clause preserves
40 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
nothing that falls within the preemption clause; it is a
command that other sections of the TCA do not have any
preemptive effect.
Second, unlike the other two clauses, the preservation
clause also refers to “rules promulgated under the [TCA].”
21 U.S.C. § 387p(a)(1). The second function of the
preservation clause is to prohibit regulations from having
any preemptive effect.
Third, unlike the preemption and savings clauses, the
preservation clause applies not just to states and political
subdivisions of states, but also to federal agencies (including
the armed forces) and the governments of Indian tribes.
Because the preemption and savings clauses apply only to
states and political subdivisions, the preservation clause thus
clarifies that federal agencies and Indian tribes are not
preempted from doing anything at all.
The majority declines to adopt my reading of the
preemption clause, arguing that it would make the
preservation clause “a nullity.” Majority at 20. But my
interpretation does no such thing. The preservation clause
has three important functions: It “clears the field” for the
preemption clause by clarifying that neither other sections of
the TCA nor regulations pursuant to the TCA can have a
preemptive effect, and it applies to federal agencies and the
governments of Indian tribes. My reading of the preemption
clause does not disturb these functions.
C
Having dealt with the preservation clause, the majority’s
argument now hangs just on the savings clause. While a
closer call than the preservation clause, the savings clause
can’t bear the majority’s argument either.
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 41
The savings clause saves from preemption
“requirements relating to the sale, distribution, possession,
information reporting to the State, exposure to, access to, the
advertising and promotion of, or use of, tobacco products by
individuals of any age.” 21 U.S.C. § 387p(a)(2)(B). The
question is thus whether Los Angeles’s ban is a
“requirement[] relating to the sale . . . of tobacco products
[to] individuals of any age.” Id. 2 I would hold that it is not.
The savings clause only saves for states the authority to enact
age requirements. Any other reading makes the clause “[to]
individuals of any age” superfluous.
First, “a statute should not be construed so as to render
any of its provisions mere surplusage.” United States v.
Wenner, 351 F.3d 969, 975 (9th Cir. 2003). But that’s
exactly how the majority construes the TCA here. If “[to]
individuals of any age” allows any kind of ban, then
Congress should have just left the entire phrase out, because
it adds nothing. The savings clause would read just as well
without the phrase: it would cover, in relevant part,
“requirements relating to the sale of[] tobacco products.”
21 U.S.C. § 387p(a)(2)(B) (altered to omit “by individuals
of any age”). Plus, if Congress intended to allow any kind
of ban, and if Los Angeles’s reading is right, then Congress
also might as well have said, “by individuals of any hair
color” or “by individuals of any religious persuasion.” Los
Angeles’s reading is thus not permitted.
Second, that “of any age” refers to age bans is supported
by the statutory context. One of Congress’s main priorities
in passing the TCA was addressing underage smoking. See
2
I agree with the majority that the clause covers requirements
relating to the sale of tobacco products “to” people of any age, and not
“by” people of any age. Majority at 12 n.5.
42 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
Tobacco Control Act, Pub. L. No. 111-31, Div. A, § 2, 123
Stat. 1,781 (2009) (codified at 21 U.S.C. § 387). But in
2009, many states already had laws restricting tobacco sales
to young adults, not just minors. See, e.g., S.B. 300, 1997
Sen., Reg. Sess. (Ala. 1997) (nineteen years old). Congress
was concerned about underage smoking and did not want to
block the states’ efforts to address smoking by young adults.
So when Congress preempted some tobacco regulation, it
made sure to continue to allow states to set any age
restrictions, to avoid interfering with states’ efforts to
combat smoking among young people generally.
On “of any age,” the Second and First Circuits adopted
the majority’s reading, but their reasoning was not
convincing. In Smokeless Tobacco, when quoting the TCA’s
savings clause, the Second Circuit just left off the “by
individuals of any age” language entirely. See 708 F.3d at
435. The First Circuit did the same in National Association
of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71,
82 (1st Cir. 2013).
The district court in Edina, on the other hand, addressed
the argument in depth. See 482 F. Supp. 3d at 880–81. But
contrary to its holding (“of any age” allows any ban), its
reasoning supports the opposite outcome. The Edina court
pointed first to the “broader context of the Act,” reflecting
that the FDA had tried before to enact age restrictions, and
second to the “congressional findings memorialized in the
Act, which highlight the problem of tobacco use by children
and adolescents.” Id. The court reasoned that “[a]gainst this
backdrop, Congress would have reason to emphasize that,
although the Act grew out of concerns over tobacco use by
minors, state and local governments are not limited to
enacting age-related restrictions.” Id. at 881. In support of
this point, the court cited the district court’s opinion in
R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 43
Smokeless Tobacco, which held that the TCA’s “reference to
‘individuals of any age’ was Congress’[] way of saying that
the carve-outs for state prerogative would not be limited to
enacting laws aimed only at minors.” 482 F. Supp. 3d at 881
(citing 703 F. Supp. 2d 329, 348 (S.D.N.Y. 2010)).
I agree with this reasoning, but it supports the opposite
conclusion. The S.D.N.Y. had it exactly right: Congress
wasn’t limited to saving laws aimed just at minors. Rather,
it saved age bans aimed at individuals of any age—minors
or adults. That’s why Congress included the phrase
“individuals of any age.” Congress was focused on smoking
by young people and some states already banned cigarette
sales to young adults. These are reasons to think that
Congress was trying to save only age bans, not other bans.
The majority avoids my interpretation by arguing that it
leads to an absurd result—that states cannot ban flavored
tobacco products but can simply set a minimum age of 105.
But an age ban with a minimum age of 105 is not really an
age ban; it is, in effect, a blanket ban. Courts are well-
equipped to tell the difference between a real age ban and a
purported age ban that is really a de facto ban. That the line
might be hard to draw in some hypothetical future case is no
reason to throw the baby out with the bathwater. We must
avoid reading statutes in absurd ways, United States v.
LKAV, 712 F.3d 436, 444 (9th Cir. 2013) (citation and
internal quotation marks omitted), but no canon of statutory
interpretation requires us to avoid any reading of a statute
under which one can craft an absurd argument.
III
To sum up, first, the preservation clause does not affect
the preemption clause. Instead, it clarifies that no other
provision of the statute (or regulation made under it) has any
44 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
preemptive effect. It also clarifies that the authorities of
federal agencies and Indian tribes are not preempted by the
TCA. Second, the preemption clause preempts all
requirements different from or in addition to the TCA’s
requirements relating to tobacco product standards. That
includes Los Angeles’s ban, which is itself a tobacco product
standard enforced at the point of sale. And third, the savings
clause only permits states and municipalities to enact age
bans. Los Angeles’s ban is thus preempted.
The majority reads these three clauses as a “preservation
sandwich served up by the TCA.” Majority at 25. But in
holding that Los Angeles’s ban is not preempted, the
majority has actually folded itself into a pretzel. The
majority argues that the preemption clause is “hardly
useless,” because the federal government is still the only one
that can technically set standards. Majority at 30–31. But
under the majority’s reading, states and municipalities can
ban anything made with standards that they don’t like, and
thus can “opt out of [the federal standards]” entirely. Id.This is the very reasoning that the Supreme Court says
“make[s] a mockery” of a preemption clause. Nat’l Meat,
565 U.S. at 464. By construing the TCA’s preemption
clause to allow sales bans that defeat its entire purpose, the
majority does just that.
I would hold that Los Angeles’s ban is preempted by the
TCA. I thus respectfully dissent.