Eighth Circuit rejects preemption challenge to city’s flavored tobacco ban

After the City of Edina, Minnesota, banned the sale of flavored tobacco products, R.J. Reynolds and other tobacco industry companies sued, arguing the law is preempted by the federal Tobacco Control Act. In a unanimous per curiam opinion, the Eighth Circuit affirmed the district court’s decision holding that the law is not preempted.  Agreeing with other circuits, the court held that a ban on sales does not “tell tobacco companies how to manufacture tobacco or what additives they can include in tobacco,” and thus isn’t a preempted “tobacco product standard.” In the alternative, the court held the law would be protected by the Act’s savings clause. Of note, the court found that competing views of that statutory provision were equally plausible, but found a presumption against preemption and principles of federalism required construing the Act’s preemptive scope narrowly. The court also rejected an implied preemption argument.

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