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CASE 0:20-Cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 1 of 24 CASE 0:20-cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 1 of 24 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA R.J. REYNOLDS TOBACCO COMPANY; Case No. 20‐CV‐1402 (PJS/LIB) R.J. REYNOLDS VAPOR COMPANY; AMERICAN SNUFF COMPANY, LLC; SANTA FE NATURAL TOBACCO COMPANY, INC.; COUSINS II INC., d/b/a Vernon BP; and LANG’S AUTOMOTIVE SERVICE INC., d/b/a Lang’s One Stop Market, Plaintiffs, ORDER v. CITY OF EDINA; EDINA CITY COUNCIL; and SCOTT NEAL, in his official capacity as City Manager of the City of Edina, Defendants. Christian G. Vergonis, Lisa L. Beane, and Ryan J. Watson, JONES DAY, for plaintiffs. David S. Kendall and Shana N. Conklin, CAMPBELL KNUTSON P.A., for defendants. Defendant City of Edina (“the City”) recently adopted an ordinance banning the sale of “flavored tobacco products.” Plaintiffs—a group of tobacco‐product manufacturers and retailers—bring this action for declaratory and injunctive relief, alleging that the ordinance is expressly and impliedly preempted by federal law. CASE 0:20-cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 2 of 24 This matter is before the Court on the City’s motion to dismiss and plaintiffs’ motion for a preliminary injunction. For the reasons that follow, the Court grants the City’s motion, denies plaintiffs’ motion, and dismisses this action.1 A. Standard of Review In reviewing a motion for a preliminary injunction, a court must consider four factors: (1) the movant’s likelihood of success on the merits; (2) the threat of irreparable harm to the movant if the injunction is not granted; (3) the balance between that harm and the harm that granting the injunction will inflict on the other parties; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). In reviewing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. York v. Wellmark, Inc., 965 F.3d 633, 638 (8th Cir. 2020). Although the factual allegations need not be detailed, they must be sufficient to “raise a right to relief above the speculative level . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must “state a claim to relief that is plausible on its face.” Id. at 570. 1In addition to suing the City, plaintiffs also sued the city council and the city manager in their official capacities. At oral argument, however, plaintiffs conceded that their claims against those defendants are redundant. The Court accordingly dismisses those claims without prejudice. -2- CASE 0:20-cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 3 of 24 Even though the parties’ motions are subject to different standards of review, the parties agree that this case turns on pure questions of law and that, regardless of how the Court resolves the parties’ motions, the case is ripe for resolution and entry of judgment. See Fed. R. Civ. P. 65(a)(2) (permitting a court to consolidate a preliminary‐ injunction hearing with the trial on the merits). B. The Ordinance On June 16, 2020, the City adopted Ordinance No. 2020–08 (“the Ordinance”), which provides that “[n]o person shall sell or offer for sale any flavored tobacco products.” Compl. Ex. C. The Ordinance defines “flavored tobacco product” as follows: Flavored tobacco product means any tobacco, tobacco‐related product, or tobacco‐related device that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to or during consumption or use of the product or device, including, but not limited to, any taste or smell relating to menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, fruit, or any candy, dessert, alcoholic beverage, herb or spice. A public statement or claim, whether express or implied, made or disseminated by a manufacturer of the product or device, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such products, that a product has or produces a taste or smell other than tobacco will constitute presumptive evidence that the product is a flavored tobacco product. Id. The Ordinance takes effect on September 1, 2020. Id. -3- CASE 0:20-cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 4 of 24 Plaintiffs argue that the Ordinance is both expressly and impliedly preempted. The Court considers each argument in turn. C. Express Preemption In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act (“the Act”), Pub. L. No. 111‐31, 123 Stat. 1776 (June 22, 2009), which grants the Food and Drug Administration (“FDA”) authority to regulate tobacco products. The Act contains several provisions that expressly address the extent of state and local authority to regulate tobacco products. Specifically, 21 U.S.C. § 387p—entitled “Preservation of State and local authority”—contains a preservation clause (§ 387p(a)(1)), a preemption clause (§ 387p(a)(2)(A)), and a saving clause (§ 387p(a)(2)(B)). The preservation clause (§ 387p(a)(1)) provides as follows: Except as provided in paragraph (2)(A) [the preemption clause], nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of a Federal agency (including the Armed Forces), a State or political subdivision of a State, or the government of an Indian tribe to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products. No provision of this subchapter shall limit -4- CASE 0:20-cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 5 of 24 or otherwise affect any State, tribal, or local taxation of tobacco products. The preemption clause (§ 387p(a)(2)(A)) provides as follows: No State or political subdivision of a State may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement under the provisions of this subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products. And finally the saving clause (§ 387p(a)(2)(B)) provides as follows: Subparagraph (A) [the preemption clause] does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age, or relating to fire safety standards for tobacco products. The parties first dispute whether the Ordinance falls within the scope of the preemption clause. Specifically, they dispute whether the Ordinance qualifies as a “requirement . relating to tobacco product standards . .” (The Court adopts the parties’ shorthand convention of referring to such requirements as “tobacco product standards.”) The City argues that the Ordinance does not establish a “tobacco product standard”—and thus is not within the preemption clause—because it regulates the sale of finished products and does not dictate anything about the manufacturing process or about what ingredients tobacco products may contain. -5- CASE 0:20-cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 6 of 24 Other courts have agreed with this distinction, holding that a tobacco‐product standard is a manufacturing regulation, and thus that a sales regulation is not a tobacco‐ product standard unless it is a de facto manufacturing regulation—that is, unless it “clearly infringe[s] on the FDA’s authority to determine what chemicals and processes may be used in making tobacco products.” U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 434–35 (2d Cir. 2013) (holding that a sales restriction was not a “tobacco product standard” because “[w]hether a product is governed by Administrative Code § 17–715 depends on its characteristics as an end product, and not on whether it was manufactured in a particular way or with particular ingredients”); CA Smoke & Vape Ass’n, Inc. v. Cty. of Los Angeles, No. 20‐4065, 2020 WL 4390384, at *5 (C.D. Cal. June 9, 2020) (“a sales ordinance that does not direct manufacturers as to which ingredients they may or may not include is not a preempted tobacco product standard” (footnote omitted)); see also Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71, 82–83 & n.11 (1st Cir. 2013) (holding that sales regulations are not tobacco‐product standards and stating that “whether those regulations have an impact on manufacturing is irrelevant”). Unfortunately, however, the courts that have embraced this manufacturing/sales distinction have provided little in the way of justification—and, indeed, have sometimes -6- CASE 0:20-cv-01402-PJS-LIB Document 47 Filed 08/31/20 Page 7 of 24 provided little more than ipse dixit. In this Court’s view, the distinction is insupportable in light of the statutory text. While the Act does not expressly define “tobacco product standards,” it does prescribe the content of such standards. Section 387g(a)(4) provides that a tobacco‐ product standard “shall include provisions that are appropriate for the protection of the public health .
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