R.J. REYNOLDS TOBACCO COMPANY; AMERICAN SNUFF COMPANY; SANTA FE NATURAL TOBACCO COMPANY, INC. v. 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
No. 20-55930
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 18, 2022
D.C. No. 2:20-cv-04880-DSF-KS
FOR PUBLICATION
OPINION
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
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 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.
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
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.
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“),
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
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.”
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
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“),
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
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 Al. 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
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
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.”
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
affect any State, tribal, or local taxation of tobacco products.
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
subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.
Immediately following the TCA‘s preemption clause, a savings clause then excepts various broadly defined categories from preemption. See
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.
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.
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’
III. JURISDICTION AND STANDARD OF REVIEW
“We have appellate jurisdiction under
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
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
said on
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
“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
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
misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.”
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.,
This is not to say that the phrase “tobacco product standards” is incapable of being read more broadly. Since
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
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,
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.
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 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.
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
Second, Appellants’ interpretation unnecessarily trades the most common and natural understanding of “product standards” for the broadest interpretation possible. While 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.
In National Meat, the Supreme Court held that the
Like it did in National Meat, the Supreme Court also rejected an attempted distinction between general production processes and sales bans when interpreting the
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 “requirement[] relating to the sale . . . of[] tobacco products [to] individuals of any age.”
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
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 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 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
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,”
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
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 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
V. CONCLUSION
For the reasons stated herein, the County of Los Angeles‘s ban on the sale of flavored tobacco products is 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
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 public and private fleet operators to purchase cars which met certain emission specifications. See id. 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,”
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;
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
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 which is different from, or in addition to, any requirement under the provisions of [the TCA] relating to tobacco product standards.”
The TCA provides that no cigarette shall have any “artificial or natural flavor (other than tobacco or menthol).”
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.
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.”
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
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 21-22; 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 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].”
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.
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.
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.”
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.”
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
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
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 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 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.
I would hold that Los Angeles‘s ban is preempted by the TCA. I thus respectfully dissent.