RJ Reynolds Takes Legal Action Against California Flavor Ban

R.J. Reynolds has taken the lead for vaping advocates in filing a federal lawsuit against the flavored tobacco ban in California. 

This response from the big tobacco company came on Nov. 9, 2022. This was only a day after Proposition 31, the referendum of S.B. 793, was overwhelmingly won by the upholding group. 

The reasoning behind the lawsuit is that the flavor ban violates the Constitution’s supremacy and commerce clauses. The vape company believes that the state government does not have the right to make changes to the existing federal laws found in the Tobacco Control Act. 

Other companies involved in the lawsuit include R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company, American Snuff Company, LLC, Santa Fe Natural Tobacco Company, Inc.; Modoral Brands Inc., Neighborhood Market Association, Inc., and Morija, LLC (Vapin’ the 619).

This is not the first time R.J. Reynolds has attempted a lawsuit like this. History indicates that at best, the flavor ban will be put on hold temporarily until the lawsuit is concluded and the ban is fully implemented. 

The Lawsuit

With any law that has the power to strip companies of profits, this flavor ban was challenged immediately by various groups. 

The goal of the lawsuit is, of course, to block the flavor ban and allow various companies to continue the sales of the potentially outlawed products. 

In addition to seeking to invalidate the votes under Proposition 31, the lawsuit is hoping to permanently prevent the state from ever enforcing flavor bans for tobacco products. 

While R.J. Reynolds is leading the lawsuit, there are numerous other vaping companies that have weighed in in response to the results of Proposition 31. 

However, and somewhat disappointingly, all of the listed plaintiffs are subsidiary companies of R.J. Reynolds, except for Neighborhood Market Association, Inc. and Morija, LLC. 

A lack of voting on the statewide ballot can be considered a glaring reason behind the failure to block the ban in the first place. 

This is not the first time R.J. Reynolds has stepped up to challenge a flavor ban in the state. The company filed against the Los Angeles county government already once this year. 

The lawsuit was filed under the guise that state governments do not have the constitutional right to change the existing federal laws given by the Tobacco Control Act. 

The U.S. Court of Appeals for the Ninth Circuit ruled against the vape company in March 2022.

The question now is this: 

If R.J. Reynolds could not succeed in halting the flavor ban in Los Angeles on a much smaller scale, with almost exactly the same argument for their case, how will this latest lawsuit end up with a different result? 

In all likelihood, the lawsuit was undertaken to allow the last period of sales of their various products that would be affected by the ban. 

The most notable of these is Newport cigarettes, which represent the highest-selling menthol cigarette brand in the country. 

California Flavor Ban

The flavor ban to be implemented from S.B. 793 has been in the works for a number of years now. Gov. Gavin Newsom signed the bill for the ban in 2020. 

Intense lobbying from vaping advocates and big tobacco companies resulted in the ban being put to a statewide ballot until this year. Obviously, the vote was hugely overturned to the side of those seeking to uphold the ban. 

Upon the conclusion of the ballot, the “yes” votes were recorded as 4,862,058, while the “no” votes came in at a disappointing 2,828,187. 

Despite having the support of various big tobacco companies against the ban, the “yes” vote was all but steamrolled by Michael R. Bloomberg, whose contributions totaled just shy of $32.8 million.

This equates to roughly 94% of the entire support contributions. 

The ban is all-encompassing for any flavored tobacco product, with the exception of a limited number of cigars, hookah pipe products, and loose-leaf tobacco. These were mostly saved due to their perceived cultural ties. 

In accordance with the lawsuit filed, the flavor ban will take place five days after the votes have been certified by the Secretary of State. This would result in the ban being implemented on Nov. 19. 

What Now for Californian Vapers?

With the closing of the ballots, there is little left that Californians can do to change the outcome of the flavor ban. For the most part, it will be left to the court. 

And unfortunately, given the previous events of R.J. Reynolds against L.A. County, it is can be considered more than likely this lawsuit will be unsuccessful and the ban will be implemented in full force. 

The story of flavor bans has spanned multiple countries already, and one thing remains fairly certain. 

Without manufacturers being allowed to produce and sell the products that consumers seek, illicit trade will flourish. 

Underage populations were already prohibited from purchasing vape products, yet they were still able to have access to these products. While this is undoubtedly an issue, what happens now that these populations will be purchasing unregulated products?

The prohibitionist strategy has never worked and this ban will certainly not be the exception. 

In Summary

Upon the results of Proposition 31, R.J. Reynolds and a select number of vaping companies have filed a lawsuit against the state of California. The results of the statewide ballot were massively in favor of the ban. 

The ban consists of all flavored tobacco products like vapes, e-liquids, and others. There are only some exceptions. 

This is not the second time companies have tried to challenge a flavor ban within California. Here is hoping that this attempt will prove more successful than the ban in Los Angeles.