Case 2:20-cv-04065-DSF-KS Document 44 Filed 08/07/20 Page 1 of 7 Page ID #:1271
` Plaintiffs,
`CV 20-4065 DSF (KSx)
`Order GRANTING Defendants’
`Motion to Dismiss (Dkt. 39)
` Defendants.
`Defendants move to dismiss the complaint in its entirety. Dkt.
`39 (Mot.). Plaintiffs oppose. Dkt. 40 (Opp’n). The Court deems this
`matter appropriate for decision without oral argument. See Fed. R.
`Civ. P. 78; Local Rule 7-15. For the reasons stated below, the motion is
`Los Angeles County Code Section 11.35 (the Ordinance) regulates
`the sale of tobacco. Amendments to the Ordinance were passed at the
`September 24, 2019 County Board of Supervisors meeting and became
`effective on May 1, 2020. See Dkt. 1 (Compl.) ¶¶ 37, 60. The
`Ordinance requires “[a]ny person intending to act as a tobacco retailer,
`who does not currently hold a Tobacco Retail License [to] . . . obtain a
`Tobacco Retail License for each location at which tobacco retailing is to
`occur,” L.A. Cty. Code § 11.35.030(A), and requires “any Tobacco Shop
`in an unincorporated area of the County, devoted exclusively or
`predominantly to the sale of tobacco, tobacco products, and tobacco


`Case 2:20-cv-04065-DSF-KS Document 44 Filed 08/07/20 Page 2 of 7 Page ID #:1272
`paraphernalia [to] have a valid business license,” id. § 11.35.055(A).
`Additionally, the Ordinance prohibits tobacco retailers from “sell[ing]
`or offer[ing] for sale, or . . . possess[ing] with the intent to sell or offer
`for sale, any flavored tobacco product or any component, part, or
`accessory intended to impart, or imparting a characterizing flavor in
`any form, to any tobacco product or nicotine delivery device, including
`electronic smoking devices.” Id. § 11.35.070(E). A “Flavored Tobacco
`Product” is defined as “any tobacco product . . . which imparts a
`characterizing flavor.” Id. § 11.35.020(J). A “tobacco product” is “[a]ny
`product containing, made, or derived from tobacco or nicotine,”
`including cigarettes, and “[a]ny electronic smoking device that delivers
`nicotine or other substances,” including e-cigarettes and vaping devices.
`Id. § 11.35.020(U)(1)-(2). A “characterizing flavor” is defined as:
`a taste or aroma, other than the taste or aroma of tobacco,
`imparted either prior to or during consumption of a tobacco
`product or any byproduct produced by the tobacco product,
`including, but not limited to, tastes or aromas relating to
`menthol, mint, wintergreen, fruit, chocolate, vanilla, honey,
`candy, cocoa, dessert, alcoholic beverage, herb, or spice.
`Characterizing flavor includes flavor in any form, mixed
`with or otherwise added to any tobacco product or nicotine
`delivery device, including electronic smoking devices.
`Id. § 11.35.020(C). Plaintiffs assert that the Ordinance is preempted
`under the Supremacy Clause and violates due process.
`Rule 12(b)(6) allows an attack on the pleadings for failure to state
`a claim on which relief can be granted. “[W]hen ruling on a defendant’s
`motion to dismiss, a judge must accept as true all of the factual
`allegations contained in the complaint.” Erickson v. Pardus, 551 U.S.
`89, 94 (2007) (per curiam). However, a court is “not bound to accept as
`true a legal conclusion couched as a factual allegation.” Ashcroft v.
`Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
`U.S. 544, 555 (2007)). “Nor does a complaint suffice if it tenders ‘naked


`Case 2:20-cv-04065-DSF-KS Document 44 Filed 08/07/20 Page 3 of 7 Page ID #:1273
`assertion[s]’ devoid of ‘further factual enhancement.’” Id. (alteration in
`original) (quoting Twombly, 550 U.S. at 557). A complaint must “state
`a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
`570. This means that the complaint must plead “factual content that
`allows the court to draw the reasonable inference that the defendant is
`liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. There must
`be “sufficient allegations of underlying facts to give fair notice and to
`enable the opposing party to defend itself effectively . . . and factual
`allegations that are taken as true must plausibly suggest an
`entitlement to relief, such that it is not unfair to require the opposing
`party to be subjected to the expense of discovery and continued
`litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
`Ruling on a motion to dismiss will be “a context-specific task that
`requires the reviewing court to draw on its judicial experience and
`common sense. But where the well-pleaded facts do not permit the
`court to infer more than the mere possibility of misconduct, the
`complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is
`entitled to relief.’” Iqbal, 556 U.S. at 679 (alteration in original)
`(citation omitted) (quoting Fed. R. Civ. P. 8(a)(2)).
`As a general rule, leave to amend a complaint that has been
`dismissed should be freely granted. Fed. R. Civ. P. 15(a). However,
`leave to amend may be denied when “the court determines that the
`allegation of other facts consistent with the challenged pleading could
`not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well
`Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
`A. Preemption (First Cause of Action)
`Plaintiffs allege that the Family Smoking Prevention and
`Tobacco Control Act (the FSPTCA), 21 U.S.C. §§ 387-387u, expressly
`preempts “the Ordinance’s blanket prohibition of menthol in tobacco
`products.” Compl. ¶ 94. As set forth in the Court’s Order denying
`Plaintiffs’ motion for a preliminary injunction, Dkt. 38 (PI Order),


`Case 2:20-cv-04065-DSF-KS Document 44 Filed 08/07/20 Page 4 of 7 Page ID #:1274
`preemption under the FSPTCA is governed by a Preemption Clause, a
`Preservation Clause, and a Savings Clause:
`• Preemption Clause. “[W]ith respect to a tobacco product,” the
`FSPTCA preempts, “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.” 21
`U.S.C. § 387p(a)(2)(A).
`• Preservation Clause. “Except as provided in [the Preemption
`Clause],” the FSPTCA does not limit the County’s authority to
`enact requirements “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.” 21 U.S.C. § 387p(a)(1).
`• Savings Clause. 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.” 21 U.S.C. § 387p(a)(2)(B).
`For the reasons stated in the PI Order, id. at 4-12, the Court
`concludes the Ordinance is not preempted by the FSPTCA because it
`does not regulate tobacco product standards and therefore is protected
`by the Preservation Clause, which permits states and localities to
`prohibit the sale of tobacco products even if those sales bans are stricter
`than federal law. In fact, Plaintiffs’ new argument distinguishing
`traditional tobacco products from vaping products, which apparently
`are “neither derived from nor actually contain tobacco,” Opp’n at 6,
`further supports the Court’s conclusion. As Plaintiffs acknowledge, the
`Ordinance “allow[s] the sale of products containing ingredients that
`mimic the taste of tobacco but do not contain tobacco.” Id. In other


`Case 2:20-cv-04065-DSF-KS Document 44 Filed 08/07/20 Page 5 of 7 Page ID #:1275
`words, the Ordinance does not direct manufacturers to include or
`exclude specific ingredients in their tobacco products – the taste or
`aroma of tobacco can be imparted by tobacco itself or some other
`combination of ingredients or devices that mimic the taste of tobacco.
` Because this is a question of statutory interpretation only, the
`Court concludes “the allegation of other facts consistent with the
`challenged pleading could not possibly cure the deficiency.” Schreiber,
`806 F.2d at 1401. Therefore, Plaintiffs’ First Cause of Action is
`DISMISSED with prejudice.
`B. Due Process (Second Cause of Action)
`Void for Vagueness
`Plaintiffs allege the Ordinance is impermissibly vague because
`tobacco “[r[etailers lack the ability to verify” whether a product
`contains a “characterizing flavor, as any ingredient can be deemed to
`impart a non-tobacco flavor,” “[m]anufacturers may modify product
`ingredients without informing the retailer of the changes,” and
`“manufacturers are not required to identify product flavors on their
`labels or packaging.” Compl. ¶¶ 109-10, 114. Plaintiffs also allege the
`Ordinance is unconstitutionally vague “as to the enforcement of all
`sales channels, as the Board’s intent and the LA County website
`undeniably conflict with the provisions set forth in the Ordinance,” id.
`¶ 112, and the phrase “possession with intent to sell” is impermissibly
`vague because a retailer can “possess flavored tobacco product with
`‘intent to sell’ online, or out-of-state, but still be in violation of the
`Ordinance,” id. ¶ 113.
`A statute is unconstitutionally vague if it 1) fails to provide
`adequate notice of the conduct it prohibits or 2) authorizes or
`encourages arbitrary or discriminatory enforcement. Sessions v.
`Dimaya, 138 S. Ct. 1204, 1212 (2018). None of Plaintiffs’ vagueness
`challenges to the Ordinance succeed. First, as explained in the PI
`Order, id. at 13-14, the term “characterizing flavor” is not
`unconstitutionally vague because in the vast majority of situations, it
`will be clear to tobacco retailers when their products impart a


`Case 2:20-cv-04065-DSF-KS Document 44 Filed 08/07/20 Page 6 of 7 Page ID #:1276
`characterizing flavor, and Plaintiffs themselves appear perfectly
`capable of understanding the term. See, e.g., Compl. ¶¶ 1, 14, 25. And
`any close cases or uncertainty at the margins should be resolved not by
`a facial vagueness challenge, “but by the requirement of proof beyond a
`reasonable doubt.” United States v. Williams, 553 U.S. 285, 306 (2008);
`see also Edge v. City of Everett, 929 F.3d 657, 667 (9th Cir. 2019), cert.
`denied sub nom. Edge v. City of Everett, Washington, 140 S. Ct. 1297
`(2020) (“The fact that law enforcement may have to make some close
`judgment calls regarding compliance with these provisions does not,
`perforce, mean that police are vested with impermissibly broad
`discretion”). Plaintiffs do not address this portion of their vagueness
`challenge in their opposition and therefore concede the argument. See
`Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir.
`2006) (“A plaintiff who makes a claim . . . in his complaint, but fails to
`raise the issue in response to a defendant’s motion to dismiss . . . , has
`effectively abandoned his claim”).
`Second, also as explained in the PI Order, id. at 12-13, Plaintiffs’
`concerns about whether the Ordinance applies to online sales channels,
`and possession with intent to sell through online sales channels, is
`really a breadth and not a vagueness challenge, as Plaintiffs
`understand exactly what the Ordinance means. Additionally, although
`the Ordinance is silent as to whether it applies to online sales,
`Plaintiffs allege that “the board affirmatively stated that the Ordinance
`would not ban online sales of flavored tobacco.” Compl. ¶ 40. The
`County “can bring clarity to an otherwise vague statute ‘through
`limiting constructions given . . . by the . . . enforcement agency.’”
`Desertrain v. City of Los Angeles, 754 F.3d 1147, 1157 (9th Cir. 2014)
`(alterations in original) (quoting Hess v. Bd. of Parole & Post-Prison
`Supervision, 514 F.3d 909, 914 (9th Cir. 2008)). There is no reason why
`this limiting construction would not apply to possession with intent to
`sell online. Therefore, with this limiting construction, the issue raised
`by Plaintiffs is not a vagueness issue, but a proof issue (can it be proven
`that the inventory in a retailer’s back room was going to be sold in the
`store rather than sold online?).
`The Ordinance is not unconstitutionally vague.


`Case 2:20-cv-04065-DSF-KS Document 44 Filed 08/07/20 Page 7 of 7 Page ID #:1277
`2. Due Process
`Plaintiffs allege their due process rights are being violated
`because the Ordinance “impos[es] a licensing requirement, but [the
`County] is unable to provide a method in which current tobacco
`retailers may continue doing business after May 1, 2020.” Compl.
`¶ 117. Plaintiffs do not allege they were denied licenses, only that they
`cannot obtain necessary licenses during the COVID-19 emergency. As
`explained in the PI Order, id. at 15, Plaintiffs do not have a property
`interest in obtaining a Business License, and therefore cannot assert a
`due process claim. Plaintiffs do not address this argument in their
`opposition and therefore concede it. See Walsh, 471 F.3d at 1037.
`Because these issues raise questions of law only, the Court
`concludes that “the allegation of other facts consistent with the
`challenged pleading could not possibly cure the deficiency.” Schreiber,
`806 F.2d at 1401. Therefore, Plaintiffs’ Second Cause of Action is
`DISMISSED with prejudice.
`Defendants’ motion to dismiss is GRANTED. The Complaint is
`DISMISSED with prejudice.
`Date: August 7, 2020
`Dale S. Fischer
`United States District Judge

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