Attorney General Becerra Files Brief in Defense of Ban on Retail Sales of Flavored Tobacco

SACRAMENTO – California Attorney General Xavier Becerra today filed a brief in defense of Senate Bill 793 (SB 793), which prohibits retail sales of most flavored tobacco products in California. In July, Attorney General Becerra sent a letter to the California legislature expressing his support for SB 793. Following its passage, a number of tobacco manufacturers and retailers filed lawsuits arguing that the law is preempted by the federal Tobacco Control Act and seeking an injunction to prevent it from going into effect. In today’s brief, Attorney General Becerra argues that SB 793 is critical to protect the health and safety of California residents and a valid exercise of state authority under the federal Tobacco Control Act.  

“Every day, thousands of young Americans will smoke their first cigarette, starting down the path toward a life-long addiction to nicotine,” said Attorney General Becerra. “Postponing enforcement of SB 793 would only serve to put our children’s health and safety at further risk. Tobacco companies have tried and failed to bring this sort of case before, and we believe they will fail again. We look forward to defending this important law in court." 

Smoking is the number one preventable killer in the United States, with over 480,000 Americans dying from tobacco-related diseases every year. This is more than the number of people who die from alcohol, AIDS, car accidents, illegal drugs, murder, and suicides – combined. Each day, thousands of young adults use a tobacco product for the first time, and many of those tobacco products are flavored. In 2019, 86.4 percent of California high school students who used tobacco reported that they used a flavored product. 

On August 28, 2020, California became the second state in the nation to pass statewide restrictions on the sale of flavored tobacco products. S.B. 793 states that “a tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product.” S.B. 793 fits well within the scope of historically state-implemented tobacco regulations expressly preserved for state and local government action by the federal Tobacco Control Act. Despite courts consistently recognizing that states and localities have this authority, the tobacco industry has once again filed a challenge that relies on the same arguments that courts have rejected. 

In his opposition brief, Attorney General Becerra argues that the court should reject the tobacco companies’ motion for a preliminary injunction because the tobacco companies are unlikely to succeed on the merits and the equities strongly favor allowing SB 793 to take effect on January 1, 2021.

Attorney General Becerra has been active in the fight against youth tobacco use. Attorney General Becerra and Nebraska Attorney General Doug Peterson led bipartisan coalitions in urging the video streaming industry and creative guilds to protect young viewers from depictions of tobacco use. Attorney General Becerra also filed amicus briefs in Philip Morris USA v. FDA and R.J Reynolds v. FDA in support of the U.S. Food and Drug Administration’s ability to require graphic warnings on tobacco packages. In 2019, Attorney General Becerra, Los Angeles District Attorney Jackie Lacey and the County of Los Angeles filed a lawsuit against JUUL Labs, Inc. for illegal sales and marketing to minors. Each year, the California Department of Justice Tobacco Grant Program distributes over $28 million to local law enforcement agencies for activities to reduce illegal sales and marketing of tobacco to minors, including minor decoy operations, retailer training programs, youth outreach, tobacco retail license inspections, and training for sworn personnel.

A copy of the brief can be found here.