Lawsuit Filed Against Edina, MN Flavor Ban Ordinance

NATO

On June 17, 2020, R.J. Reynolds Tobacco Company, American Snuff Company, LLC, Santa Fe Natural Tobacco Company, Inc., and two independent retailers doing business as Vernon BP and Lang’s One Stop Market, respectively, filed a lawsuit in the Federal District Court for the District of Minnesota against the City of Edina, Minnesota seeking declaratory and injunctive relief against a city ordinance which bans the sale of menthol cigarettes and every flavored tobacco product. Edina is a suburb of Minneapolis, Minnesota.

Background: On June 16, 2020, the Edina, Minnesota City Council approved an ordinance that prohibits the sale of menthol cigarettes and all flavored tobacco products. While the original recommendation from the Edina Community Health Commission was to ban the sale of flavored electronic cigarettes/nicotine vapor products to reduce the youth vaping rate, the Edina city staff subsequently broadened the scope of the ordinance making it illegal for any retailer to sell any flavored tobacco product that has a taste or smell other than the taste or smell of tobacco.

Legal Claims Against the City of Edina: The lawsuit filed against the City of Edina, Minnesota has two main claims.

1.Express Pre-Emption Claim

The Family Smoking Prevention and Tobacco Control Act (the federal law that authorizes the FDA to regulate tobacco products) expressly denies state and local governments the ability to adopt a tobacco product standard that is “different from, or in addition to” federal tobacco product standards. A product standard is a power granted to the FDA by Congress to reduce or eliminate an additive or constituent in a tobacco product or tobacco product smoke. Despite this pre-emption provision in the federal law, the Edina City Council enacted a product standard because the ordinance regulates flavor ingredients and constituents in cigarettes and tobacco products by banning the sale of flavored tobacco products. Moreover, Congress enacted a special rule product standard as a part of the Family Smoking Prevention and Tobacco Control Act that banned flavored cigarettes other than tobacco and menthol-flavored cigarettes. Since the Edina ordinance bans menthol cigarettes, this ban is “different from, and in addition to” the federal law allowing menthol cigarettes to be sold and, therefore, should be pre-empted.

2.Implied Pre-Emption Claim

The Family Smoking Prevention and Tobacco Control Act also impliedly pre-empts the Edina ordinance because the regulations stand as an “obstacle” to the underlying purposes of this federal law. The U.S. Supreme Court has held that this kind of “obstacle” pre-emption occurs when a state or local law “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” One of the underlying purposes of the Family Smoking Prevention and Tobacco Control Act is to authorize the FDA to set national product standards to control the manufacturing of tobacco products and the ingredients in the tobacco products. Another purpose of the federal law is to continue to permit tobacco products to be sold to legal age adults while making them inaccessible to underage persons. The Edina ordinance ban of flavored products is in direct conflict with these two purposes. Since the ordinance is in conflict with the federal law purposes, the Edina ordinance should be pre-empted under the “obstacle pre-emption” principle.

Request for Relief: Under the lawsuit, the Federal District Court is being asked to issue a ruling that includes the following relief:

  1. Declare that the Family Smoking Prevention and Tobacco Control Act pre-empts the Edina ordinance ban on the sale of all flavored tobacco products, making the ordinance invalid and unenforceable.
  2. Issue a preliminary and permanent injunction preventing the City of Edina from enforcing and implementing the ordinance’s ban on the sale of all flavored tobacco products.

A copy of the complaint filed in this lawsuit can be seen here.