`
`
`
`
`Jason C. Wright (State Bar No. 261471)
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Tel: (213) 489-3939
`Fax: (213) 243-2539
`
`Christian G. Vergonis (pro hac application forthcoming)
`Ryan J. Watson (pro hac application forthcoming)
`Andrew Bentz (pro hac application forthcoming)
`JONES DAY
`51 Louisiana Ave., N.W.
`Washington, D.C. 20001
`Tel: (202) 879-3939
`Fax: (202) 626-1700
`
`Counsel for Plaintiffs
`R.J. REYNOLDS TOBACCO COMPANY;
`AMERICAN SNUFF COMPANY, LLC; AND SANTA
`FE NATURAL TOBACCO COMPANY, INC.
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. 2:20-cv-04880
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`R.J. REYNOLDS TOBACCO
`COMPANY; AMERICAN SNUFF
`COMPANY, LLC; and SANTA FE
`NATURAL TOBACCO COMPANY,
`INC.,
`
`
`Plaintiffs,
`
`
`v.
`
`COUNTY OF LOS ANGELES;
`COUNTY OF LOS ANGELES BOARD
`OF SUPERVISORS AND HILDA L.
`SOLIS, MARK RIDLEY-THOMAS,
`SHEILA KUEHL, JANICE HAHN, and
`KATHRYN BARGER, EACH IN HIS
`OR HER OFFICIAL CAPACITY AS A
`MEMBER OF THE BOARD OF
`SUPERVISORS,
`
`
`
`Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:20-cv-04880-RGK-KS Document 1 Filed 06/01/20 Page 2 of 12 Page ID #:2
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`
`Plaintiffs R.J. Reynolds Tobacco Company (“RJRT”), American Snuff
`Company, LLC (“ASC”), and Santa Fe Natural Tobacco Company, Inc. (“Santa Fe”)
`bring this action for declaratory and injunctive relief against the County of Los
`Angeles and the County’s Board of Supervisors and the Board Members in their
`official capacities (Hilda L. Solis, Mark Ridley-Thomas, Sheila Kuehl, Janice Hahn,
`and Kathryn Barger).
`
`PRELIMINARY STATEMENT
`In an overbroad reaction to legitimate public-health concerns about
`1.
`youth vaping, the County of Los Angeles (“the County” or “L.A. County”) recently
`enacted one of the most draconian bans on tobacco products of any county in the
`nation. L.A. County is rightly concerned with the recent rise in youth use of vaping
`products. The increase in youth vaping over the past two years, and serious health
`issues from illicit products, are now at the heart of a national discussion.
`Plaintiffs R.J. Reynolds Tobacco Company, American Snuff Company,
`2.
`and Santa Fe Natural Tobacco Company (collectively, “Reynolds”) are committed to
`keeping tobacco products out of the hands of youth. Reynolds has rigorous standards
`to ensure its marketing is accurate and responsibly directed to adult tobacco
`consumers aged twenty-one and over. Reynolds also has strict compliance policies
`for retailers who sell its products to prevent youth from purchasing tobacco products
`and supports programs that train retailers to comply with age restrictions.
`Los Angeles County could have supplemented Reynolds’s efforts by
`3.
`targeting youth usage of vapor products through increased enforcement of age
`restrictions or public-education campaigns. Instead, the “Los Angeles County
`Tobacco Ordinance,” as amended, unnecessarily bans sales to adult tobacco
`consumers and, moreover, indiscriminately extends to the non-vapor products
`manufactured by Reynolds. The ordinance bans the sale or distribution of every
`conceivable flavored tobacco product, including menthol cigarettes and flavored
`
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:20-cv-04880-RGK-KS Document 1 Filed 06/01/20 Page 3 of 12 Page ID #:3
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`smokeless tobacco products. This sweeping ban is preempted by federal law and
`therefore is unconstitutional under the U.S. Constitution’s Supremacy Clause.
`First, federal law expressly preempts the County’s ban on flavored
`4.
`tobacco products. The manufacture of tobacco products is subject to intensive
`regulation by the federal Government. In striking a balance between federal authority
`and state and local authority over the regulation of tobacco products, Congress
`expressly denied states and local units of government the ability to promulgate
`tobacco product standards that are different from or in addition to federal standards.
`The County’s ban on flavored tobacco products, however, is a product standard
`because it regulates the ingredients and additives in those products. The County’s
`ban is thus expressly preempted by federal law.
`Second, federal law also impliedly preempts the ordinance because the
`5.
`County’s ban stands as an obstacle to the purposes of federal law. Congress
`authorized FDA to promulgate tobacco product standards that, in appropriate
`circumstances, can establish uniform, national standards for the manufacture of
`tobacco products and the ingredients used in such products. Congress and FDA have
`made the judgment that certain tobacco products, particularly menthol cigarettes,
`should remain available to adult users of tobacco products. The County’s ordinance,
`however, conflicts with those federal goals and must give way.
`The County has no legitimate interest in enforcing its unconstitutional
`6.
`law. The Court should thus grant injunctive and declaratory relief preventing the
`County from violating the U.S. Constitution’s Supremacy Clause.
`PARTIES
`Plaintiff RJRT is a North Carolina corporation headquartered in
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`Winston-Salem, North Carolina. RJRT develops, manufactures, markets, and
`distributes a variety of flavored tobacco products under a variety of brand names,
`including menthol cigarettes under the brand names Newport and Camel, among
`others, and flavored smokeless tobacco products under the brand name Camel SNUS.
`
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:20-cv-04880-RGK-KS Document 1 Filed 06/01/20 Page 4 of 12 Page ID #:4
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`Plaintiff ASC is a North Carolina corporation headquartered in
`8.
`Winston-Salem, North Carolina. ASC develops, manufactures, markets, and
`distributes a variety of flavored smokeless tobacco products, including under the
`brand name “Grizzly.”
`Plaintiff Santa Fe develops, manufactures, markets, and distributes
`9.
`menthol cigarettes under the brand name Natural American Spirit.
`Defendant County of Los Angeles “is a body corporate and politic . . . .
`10.
`of the State of California.” See Charter of the County of Los Angeles, Art. I, § 1. As
`such, it exercises “county powers” as provided by the California Legislature. See Cal.
`Const. Art. 11, § 1(b).
`Defendants Los Angeles County Board of Supervisors and the Board
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`Members in their official capacities—Hilda L. Solis, Mark Ridley-Thomas, Sheila
`Kuehl, Janice Hahn, and Kathryn Barger—constitute the County’s official governing
`body. By law, the Board “supervise[s] the official conduct of all county officers, and
`officers of all districts and other subdivisions of the county.” Cal. Gov. Code § 25303.
`The Board of Supervisors and the Board Members act under color of law and the
`Board Members are sued in their official capacities.
`JURISDICTION AND VENUE
`The Court has subject-matter jurisdiction under 28 U.S.C. § 1331
`12.
`because this action arises under the Constitution and laws of the United States.
`This Court also has authority to grant relief under the Declaratory
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`Judgment Act, 28 U.S.C. § 2201 et seq.
`This judicial district is the proper venue under 28 U.S.C. § 1391(b)
`14.
`because it is where the County of Los Angeles lies, where Defendants perform their
`official duties, and where a substantial part of the events giving rise to the claims
`occurred.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:20-cv-04880-RGK-KS Document 1 Filed 06/01/20 Page 5 of 12 Page ID #:5
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`BACKGROUND
`The Tobacco Control Act and Federal Regulation of Tobacco Products
`The Family Smoking Prevention and Tobacco Control Act of 2009,
`15.
`Public Law 111-31, 123 Stat. 1776 (June 22, 2009), amended the Federal Food, Drug,
`and Cosmetic Act and established the U.S. Food and Drug Administration as “the
`primary Federal regulatory authority with respect to the manufacture, marketing, and
`distribution of tobacco products.” Id. § 3(1), 123 Stat. at 1781 (codified at 21 U.S.C.
`§ 387 note). The Tobacco Control Act applies to cigarettes, cigarette tobacco, roll-
`your-own tobacco, and smokeless tobacco products, as well as to any other tobacco
`products that FDA by regulation deems subject to the Act. 21 U.S.C. § 387a(b). The
`Act defines “tobacco product” as “any product made or derived from tobacco that is
`intended for human consumption.” 21 U.S.C. § 321(rr)(1).
`In 2016, FDA exercised its deeming authority, 21 U.S.C. § 387a(b), to
`16.
`bring within its regulatory authority all products meeting the statutory definition of a
`tobacco product. See Deeming Tobacco Products To Be Subject to the Federal Food,
`Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and
`Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco Products
`and Required Warning Statements for Tobacco Products, 81 Fed. Reg. 28,974 (May
`10, 2016).
`Congress passed the Tobacco Control Act to, inter alia, “authorize the
`17.
`[FDA] to set national standards controlling the manufacture of tobacco products and
`the … amount of ingredients used in such products.” Tobacco Control Act § 3(3),
`123 Stat. at 1781 (codified at 21 U.S.C. § 387 note). To that end, the Act empowers
`FDA to adopt “tobacco product standards,” 21 U.S.C. § 387g, including “provisions
`respecting the … additives … of the tobacco product,” id. § 387g(a)(4)(B)(i). The
`term “additives” includes “substances intended for use as a flavoring.” Id. § 387(1).
`The Act also directly created tobacco product standards such as a
`18.
`“Special Rule for Cigarettes.” The Special Rule for Cigarettes bans the use in
`
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`cigarettes of “characterizing flavors” “other than tobacco or menthol.” 21 U.S.C.
`§ 387g(a)(1)(A). But the Act expressly reserves “menthol cigarettes” to FDA’s
`regulatory authority. See id. (noting “the Secretary’s authority to take action . . .
`applicable to menthol”). To date, the FDA has chosen not to ban the use of menthol
`in cigarettes. In fact, FDA has issued advance notices of proposed rulemaking
`(“ANPRMs”) contemplating the adoption of “tobacco product standard[s]” banning
`various flavored tobacco products, including menthol cigarettes and flavored vapor
`products. See, e.g., Menthol in Cigarettes, Tobacco Products; Request for Comments,
`78 Fed. Reg. 44,484, 44,485 (July 24, 2013); Regulation of Flavors in Tobacco
`Products, 83 Fed. Reg. 12,294, 12,299 (Mar. 21, 2018). But it has never banned
`menthol in cigarettes or smokeless tobacco. And studies have shown that menthol
`cigarettes do not adversely affect initiation of or progression to smoking, and there is
`no clear association between menthol use and decreased smoking cessation. See RAI
`Services Company, Comment Letter on Advance Notice of Proposed Rulemaking
`Regarding Regulations of Flavors in Tobacco Products (July 18, 2018).
`The Tobacco Control Act expressly preempts state or local regulations
`19.
`that set forth requirements “different from, or in addition to,” any of the Tobacco
`Control Act’s or FDA’s requirements relating to federal “tobacco product standards.”
`21 U.S.C. § 387p(a)(2)(A) (“Tobacco Preemption Clause”). The Tobacco
`Preemption Clause ensures that tobacco manufacturers will have to comply with just
`one set of product specifications nationwide—rather than having to grapple with
`potentially hundreds of different requirements set by different states and local
`jurisdictions governing the same products. See Tobacco Control Act § 3(3), 123 Stat.
`at 1781 (codified at 21 U.S.C. § 387 note).
`The Tobacco Control Act also contains a narrow saving clause, which
`20.
`provides that the Tobacco Preemption Clause “does not apply to requirements
`relating to the sale [and] distribution . . . of . . . tobacco products by individuals of
`any age.” Id. § 387p(a)(2)(B). But the saving clause narrows the category of
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`permissible state and local requirements to those that turn on the “age” of the
`“individuals” buying or using the regulated tobacco products. See id. And even if the
`saving clause applies beyond age-based requirements, the clause does not protect
`state and local laws that prohibit a product’s sale and distribution altogether, but
`rather only more limited laws that regulate the time, place, and manner of the
`product’s sale and distribution. Compare id., with id. § 387p(a)(1).
`The County’s Ban on Flavored Tobacco Products
`In September 2019, the County of Los Angeles Board of Supervisors
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`heard from the Director of Public Health. She reported that there was a “vaping
`epidemic among youth.” L.A. County Supervisors Vote to Ban Flavored Tobacco And
`Call For Statewide Vaping Ban, L.A. TIMES (Oct. 1, 2019), available at
`https://tinyurl.com/y3mgpjpn. She noted that there was evidence that vaping might
`be harmful and that there were a rising number of cases of “vaping-associated
`pulmonary illness.” Press Release of Supervisor Mark Ridley-Thomas, LA County
`to Protect Youth, at
`Bans Flavored E-Cigs and Flavored Tobacco
`https://tinyurl.com/ya7uw9y7. The Board also heard from former smokers who said
`that flavored products had helped them quit smoking combustible cigarettes. L.A.
`TIMES, supra.
`Then on September 24, 2019, the County of Los Angeles Board of
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`Supervisors unanimously approved an Ordinance prohibiting retail sales of flavored
`tobacco products and creating a new business-license requirement. See Amended Los
`Angeles County Tobacco Ordinance (codified at L.A. County Code Titles 7 and 11)
`(Sep. 24, 2019), Exhibit A. After it passed, Supervisor Ridley-Thomas confirmed
`that the catalyst for the new ordinance was the increase in youth vaping: “The
`growing popularity of e-cigarettes and vaping puts the health and wellbeing of our
`communities, particularly our youth, at risk.” Ridley-Thomas, supra. Supervisor
`Hahn echoed that sentiment: “For decades, we were making incredible progress in
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`decreasing tobacco use among young people. But flavored e-cigarettes have reversed
`that trend. Now nearly 1 in 10 high schoolers report using e-cigarettes.” Id.
`The Ordinance’s formal legislative purpose affirmed the Board’s focus
`23.
`on “protecting children from being lured into nicotine and tobacco use through the
`illegal sale of products, including vaping products.” L.A. Cty. Code § 11.35.010.
`Despite the Board’s focus on e-cigarettes, the Ordinance it adopted
`24.
`strikes far broader. The Ordinance makes it illegal, inter alia, to “[s]ell or offer for
`sale, or to possess 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).
`Under the Ordinance, a “tobacco product” is “[a]ny product containing,
`25.
`made, or derived from tobacco or nicotine, whether natural or synthetic, that is
`intended for human consumption, whether smoked, heated, chewed, absorbed,
`dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but
`not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and
`snuff.” Id. § 7.83.020(G)(1). A “tobacco product” also encompasses “[a]ny electronic
`smoking device that delivers nicotine or other substances, whether natural or
`synthetic, to the person inhaling from the device, including but not limited to, an
`electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vaping
`device.” Id. § 7.83.020(G)(2).
`A “flavored tobacco product” is “any tobacco product, as defined in this
`26.
`Chapter, which imparts a characterizing flavor.” Id. § 11.35.020(J). Menthol is
`among the characterizing flavors specified in the ordinance. See id. § 11.35.020(C)
`(“‘Characterizing flavor’ means 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 . . . .”).
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`In short, the Ordinance bans any kind of flavored tobacco or nicotine
`27.
`product, whether natural or synthetic, including the sale of all menthol cigarettes and
`other menthol-flavored products.
`The ban on flavored tobacco products is already in effect. And
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`enforcement began on May 1, 2020. See “Tobacco Control and Prevention Program,”
`http://publichealth.lacounty.gov/tob/ (last visited June 1, 2020).
`Plaintiffs’ Products
`Plaintiffs RJRT, ASC, and Santa Fe manufacture numerous tobacco
`29.
`products which are subject to the Ordinance’s prohibition on flavored tobacco
`products and which Plaintiffs would distribute for resale in the County but for the
`Ordinance.
`RJRT manufactures and sells various tobacco products—including
`30.
`products with characterizing flavors, such as menthol cigarettes, as well as cigarettes
`that do not have characterizing flavors—under a variety of brand names, including
`Newport and Camel. RJRT also sells smokeless tobacco products, including flavored
`smokeless tobacco products, under the brand name Camel SNUS.
`ASC markets and sells various smokeless tobacco products—including
`31.
`products with and without characterizing flavors—under a variety of brand names,
`including “Grizzly.”
`Santa Fe markets and sells various tobacco products—including
`32.
`products with characterizing flavors, such as menthol cigarettes, as well as cigarettes
`that do not have characterizing flavors—under the brand name Natural American
`Spirit.
`RJRT, ASC, and Santa Fe each desires to resume selling flavored
`33.
`tobacco products for resale within the County of Los Angeles.
`The Act’s ban on flavored tobacco products harms RJRT, ASC, and
`34.
`Santa Fe because it severely restricts their ability to market and sell their products to
`customers in the County of Los Angeles.
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`Case 2:20-cv-04880-RGK-KS Document 1 Filed 06/01/20 Page 10 of 12 Page ID #:10
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`CLAIMS FOR RELIEF
`COUNT I
`Express Preemption
`The preceding paragraphs are incorporated and re-alleged here.
`35.
`The Supremacy Clause of the Constitution provides that the laws of the
`36.
`United States “shall be the supreme Law of the Land … any Thing in the Constitution
`or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
`Thus, state laws and local ordinances that conflict with federal law are “without
`effect.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981).
`Under the Los Angeles County Tobacco Ordinance, as amended,
`37.
`Plaintiffs can no longer manufacture “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” for sale within L.A. County. L.A. Cty. Code § 11.35.070(E). Any
`violation can result in criminal fines. See, e.g., id. §§ 11.35.070(E), 11.35.120(A).
`Under the Tobacco Control Act’s preemption clause, the County of Los
`38.
`Angeles is prohibited from enacting and enforcing ordinances that are “different
`from, or in addition to,” any of the Tobacco Control Act’s or FDA’s requirements
`relating to federal “tobacco product standards.” 21 U.S.C. § 387p(a)(2)(A). The
`County’s ban on flavored tobacco products is “different from, or in addition to,” the
`requirements of federal law, and is thus preempted.
`Accordingly, the Tobacco Control Act preempts the County of Los
`39.
`Angeles’s ban on flavored tobacco products, rendering it invalid and unenforceable.
`COUNT II
`Implied Preemption
`The preceding paragraphs are incorporated and re-alleged here.
`40.
`“Obstacle preemption” occurs when a state law or local ordinance
`41.
`“stands as an obstacle to the accomplishment and execution of the full purposes and
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`objectives of Congress.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372
`(2000).
`One purpose of the Tobacco Control Act is “to authorize the [FDA] to
`42.
`set national standards controlling the manufacture of tobacco products and the …
`amount of ingredients used in such products.” Tobacco Control Act § 3(3), 123 Stat.
`at 1781 (codified at 21 U.S.C. § 387 note).
`The County of Los Angeles’s ban on flavored tobacco products directly
`43.
`undermines the Act’s ability to set such national standards.
`Another purpose of the Tobacco Control Act is “to continue to permit
`44.
`the sale of tobacco products to adults” while making them inaccessible to minors. Id.
`§ 3(7), 123 Stat. at 1782 (codified at 21 U.S.C. § 387 note). To that end, FDA has
`elected to allow menthol cigarettes to stay on the market. See id. § 387g(a)(1)(A).
`Menthol cigarettes thus must remain available on the market unless and until FDA
`properly determines that they must be removed from the market. See id.
`Consistent with its federal authority, FDA has been exploring regulation
`45.
`of flavors in tobacco products. See, e.g., Menthol in Cigarettes, Tobacco Products;
`Request for Comments, 78 Fed. Reg. 44,484, 44,485 (July 24, 2013); Regulation of
`Flavors in Tobacco Products, 83 Fed. Reg. 12,294, 12,299 (Mar. 21, 2018); FDA,
`Enforcement Priorities for Electronic Nicotine Delivery Systems (ENDS) and other
`Deemed Products on the Market Without Premarket Authorization 19 (May 2020)
`(“Enforcement Priorities”) (announcing policy that effectively bans the sale of any
`flavored, cartridge-based ENDS product (other than a tobacco- or menthol-flavored
`ENDS
`product)),
`at
`https://www.fda.gov/regulatory-information/search-fda-
`guidance-documents/enforcement-priorities-electronic-nicotine-delivery-system-
`ends-and-other-deemed-products-market.
`The County’s ban on flavored tobacco products directly conflicts with
`46.
`the federal government’s ongoing and active efforts to address flavors in tobacco
`products, and is therefore preempted.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:20-cv-04880-RGK-KS Document 1 Filed 06/01/20 Page 12 of 12 Page ID #:12
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`Accordingly, the Tobacco Control Act preempts the County’s law,
`47.
`rendering it invalid and unenforceable.
`REQUEST FOR RELIEF
`Plaintiffs request that this Court grant the following relief:
`48. Pursuant to 28 U.S.C. § 2201, declare that under the Supremacy Clause
`of the United States Constitution, the Tobacco Control Act preempts the Los Angeles
`County Tobacco Ordinance’s ban on menthol cigarettes and flavored smokeless
`tobacco products, rendering it invalid and unenforceable.
`49. Under Federal Rule of Civil Procedure 65, preliminarily enjoin
`Defendants from enforcement or implementation of the County’s ban on menthol
`cigarettes and flavored smokeless tobacco products;
`50. Permanently enjoin Defendants from enforcement or implementation of
`the County of Los Angeles’s ban on menthol cigarettes and flavored smokeless
`tobacco products;
`51. Award Plaintiffs their costs and disbursements associated with this
`litigation under 28 U.S.C. § 2412 and other applicable authority; and
`52. Provide such other relief as the Court deems appropriate.
`Respectfully submitted,
`
`Dated: June 1, 2020
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`JONES DAY
`
`By:
`Jason C. Wright
`Attorney for Plaintiffs
`R.J. REYNOLDS TOBACCO
`COMPANY; AMERICAN SNUFF
`COMPANY, LLC; AND SANTA FE
`NATURAL TOBACCO COMPANY,
`INC.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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