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Supreme Court leaves California’s ban on flavored cigarettes in place

By Devan Cole, CNN

(CNN) — The Supreme Court declined on Monday to hear a challenge to a California law that bans the sale of flavored cigarettes, leaving the state law in place.

Tobacco manufacturers and retailers, including R.J. Reynolds, argued the state law conflicts with the federal Tobacco Control Act, which gives the US Food and Drug Administration the authority to regulate the sale of cigarettes, but stops short of allowing states to outright ban certain products as they see fit.

“Under the TCA, states have broad authority to regulate the sale of tobacco products. They can raise the minimum purchase age, restrict sales to particular times and locations, and enforce licensing regimes,” attorneys for the challengers told the justices in court papers. “But one thing they cannot do is completely prohibit the sale of those products for failing to meet the state’s preferred tobacco product standards.”

The court declined to hear the case without comment.

The California law, SB 793, makes it illegal to “sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer.”

The ban’s challengers have so far been unsuccessful in their yearslong effort to upend the law. Lower courts have ruled against their challenges to it, and the Supreme Court in 2022 denied an emergency request to temporarily block the law as they mounted a challenge to it.

The companies told the justices that the law “has shut the doors to one of the Nation’s largest markets for flavored tobacco products and thereby banned a product (menthol cigarettes) that has been lawfully sold for nearly a century,” adding that the prohibition “could result in $1.4 billion in lost economic output and cost thousands of jobs.”

California urged the justices to not take up the case, arguing that the Supreme Court “long ago recognized the broad authority of the States to regulate” tobacco, including through various outright bans.

“In the 14 years since the TCA was enacted … no court has agreed with the tobacco industry position that the Act preempts restrictions or prohibitions on the sale of flavored tobacco products,” California Attorney General Rob Bonta wrote in court papers.

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