throbber

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`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 1 of 23
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`
`R.J. REYNOLDS TOBACCO
`COMPANY, R.J. REYNOLDS VAPOR
`COMPANY, AMERICAN SNUFF
`COMPANY, LLC, SANTA FE
`NATURAL TOBACCO COMPANY,
`INC., COUSINS II INC. dba VERNON
`BP, and LANG’S AUTOMOTIVE
`SERVICE INC. dba LANG’S ONE STOP
`MARKET,
`
`
`Plaintiffs,
`
`
`v.
`
`CITY OF EDINA, EDINA CITY
`COUNCIL, and SCOTT NEAL, IN HIS
`OFFICIAL CAPACITY AS CITY
`MANAGER OF THE CITY OF EDINA,
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`Case No. 0:20-cv-1402-PJS-LIB
`
`PLAINTIFFS’ COMBINED
`OPPOSITION TO DEFENDANTS’
`MOTION TO DISMISS AND REPLY
`IN SUPPORT OF PLAINTIFFS’
`MOTION FOR PRELIMINARY
`INJUNCTION
`
`
`
`
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 2 of 23
`
`TABLE OF CONTENTS
`
`
`
`Page
`Introduction ......................................................................................................................... 1
`
`Argument ............................................................................................................................. 3
`
`I.
`
`The Court Should Deny the Motion to Dismiss ....................................................... 3
`
`A.
`
`Federal Law Expressly Preempts the City’s Ban on Flavored
`Tobacco Products .......................................................................................... 3
`
`1.
`
`2.
`
`The City’s ban is a tobacco product standard that is
`different from, and in addition to, federal standards .......................... 3
`
`The Act’s saving clause does not save the City’s ban ..................... 10
`
`Federal Law Impliedly Preempts the City’s Ban ........................................ 12
`
`The City Manager and the City Council Should Remain Parties ................ 15
`
`B.
`
`C.
`
`II.
`
`The Court Should Grant the Motion for a Preliminary Injunction and
`Consolidate under Rule 65 ..................................................................................... 16
`
`Conclusion ......................................................................................................................... 18
`
`
`
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 3 of 23
`
`
`
`
`
`
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page
`
`Alex’s Transp., Inc. v. Colorado Pub. Utilities Comm’n,
`88 F. Supp. 2d 1147 (D. Colo.), aff’d, 242 F.3d 387 (10th Cir. 2000) .................... 3, 17
`
`Billetts v. Mentor Worldwide, LLC,
`2019 WL 4038218 (C.D. Cal. Aug. 27, 2019) ............................................................... 4
`
`Buckman Co. v. Plaintiffs’ Legal Comm.,
`531 U.S. 341 (2001) ..................................................................................................... 12
`
`Bell v. Blue Cross & Blue Shield,
`823 F.3d 1198 (8th Cir. 2016) ..................................................................................... 13
`
`Carter v. Novartis Consumer Health, Inc.,
`
`582 F. Supp. 2d 1271 (C.D. Cal. 2008) ....................................................................... 10
`
`Crosby v. Nat’l Foreign Trade Council,
`530 U.S. 363 (2000) ..................................................................................................... 12
`
`Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist.,
`541 U.S. 246 (2004) ................................................................................................... 8, 9
`
`Exxon Mobil Corp. v. Allapattah Servs., Inc.,
`545 U.S. 546 (2005) .................................................................................................... 15
`
`Fireman’s Fund Ins. Co. v. City of Lodi, Cal.,
`
`302 F.3d 928 (9th Cir. 2002) ................................................................................. 15, 16
`
`Hillman v. Maretta,
`569 U.S. 483 (2013) ..................................................................................................... 12
`
`Johnson v. Brown & Williamson Tobacco Corp.,
`345 F. Supp. 2d 16 (D. Mass. 2004) ............................................................................ 14
`
`ii
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 4 of 23
`
`
`
`
`
`Kentucky v. U.S. ex rel. Hagel,
`759 F.3d 588 (6th Cir. 2014) ....................................................................................... 16
`
`Nat’l Meat Ass’n v. Harris,
`565 U.S. 452 (2012) ................................................................................................... 8, 9
`
`Nat’l Ass’n of Tobacco Outlets v. City of Providence,
`
`731 F.3d 71 (1st Cir. 2013) ...................................................................................... 7, 11
`
`Olmstead v. Bayer Corp.,
`2017 WL 3498696 (N.D.N.Y. Aug. 15, 2017) ............................................................. 4
`
`Pooshs v. Philip Morris USA, Inc.,
`904 F. Supp. 2d 1009 (N.D. Cal. 2012) ...................................................................... 14
`
`Puerto Rico v. Franklin Cal. Tax-Free Tr.,
`136 S. Ct. 1938 (2016) ................................................................................................... 4
`
`Puerto Rico Tel. Co. v. Municipality of Guayanilla,
`450 F.3d 9 (1st Cir. 2006) ............................................................................................ 10
`
`Shanklin v. Fitzgerald,
`397 F.3d 596 (8th Cir. 2005) ............................................................................. 6, 12, 16
`
`Thunder Basin Coal Co. v. Reich,
`510 U.S. 200 (1994) .................................................................................................... 16
`
`United States v. Stanko,
`491 F.3d 408 (8th Cir. 2007) ................................................................................... 8, 10
`
`U.S. Smokeless Tobacco Mfg. Co. v. City of New York,
`708 F.3d 428 (2d Cir. 2013) ..................................................................................... 7, 11
`
`STATUTES AND RULES
`
`21 U.S.C. § 387 ................................................................................................................... 4
`
`21 U.S.C. § 387 note................................................................................................... passim
`
`iii
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 5 of 23
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`
`
`
`
`21 U.S.C. § 387g ........................................................................................................ passim
`
`21 U.S.C. § 387p ........................................................................................................ passim
`
`21 U.S.C. § 678 ................................................................................................................... 9
`
`Edina City Code § 12-189 ............................................................................................... 5, 8
`
`Family Smoking Prevention and Tobacco Control Act of 2009, Public Law
`111-31, 123 Stat. 1776 .......................................................................................... passim
`
`Fed. R. Civ. P. 65............................................................................................................... 17
`
`OTHER AUTHORITIES
`
`H.R. 1376, 109th Congress, 1st Session (March 17, 2005) ............................................. 15
`
`Merriam-Webster Dictionary (online ed.) ......................................................................... 11
`
`Oxford English Dictionary (2020) ....................................................................................... 5
`
`Webster’s Third New Int’l Dictionary (1981) ..................................................................... 5
`
`
`
`
`
`iv
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 6 of 23
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`INTRODUCTION
`
`This case is not about the wisdom of the City of Edina’s ban on flavored tobacco
`
`products. Contra ECF No. 36, Mot. to Dismiss 2-3 (“MTD”). It is not about whether the
`
`ban will actually have any effect on youth use of tobacco products. Contra id. at 3. Nor is
`
`it about allegations that tobacco companies targeted their products at certain populations.
`
`Contra id.
`
`Instead, this case is about a narrower, but nonetheless important, question: Who
`
`decides what product standards apply to tobacco products? Congress answered that
`
`question unequivocally. By passing the Tobacco Control Act, Congress expressly
`
`preempted all state and local attempts to regulate the “additives” or “properties” of tobacco
`
`products in ways that are different from, or in addition to, federal tobacco product
`
`standards. 21 U.S.C. § 387g(a)(4)(B)(i). Because the flavor of a tobacco product is both an
`
`additive and a property of the product, Edina’s ban qualifies as a tobacco product standard.
`
`And because it is different from, and in addition to, federal requirements, the ban is
`
`preempted and must be set aside.
`
`The City’s defense is that its ban does not turn on how the flavor comes about.
`
`According to the City, the ordinance concerns only the end product, not how the product
`
`was manufactured. But the only way a flavor (other than tobacco) can be produced in these
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`products is through an additive. Besides adding menthol to a cigarette, how would one
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`make a cigarette that produces menthol flavor?
`
`
`
`1
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 7 of 23
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`
`
`
`
`In any event, the flavor of a consumable product is also a “property” of the
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`product—a point the City fails to contest. The banana flavor of Ben & Jerry’s Chunky
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`Monkey is a property of the ice cream. The menthol flavor of a menthol cigarette is likewise
`
`a property of the cigarette. Thus, through either route—additive or property—regulating
`
`flavors creates a tobacco product standard. That, Congress said, localities cannot do when
`
`the standard is different from, or in addition to, federal standards.
`
`Edina then invokes the Act’s saving clause, arguing that because the ban is worded
`
`as a sales restriction, it is safe from preemption. Not so. This ban is not a restriction; it is a
`
`prohibition. The City banned all sales of flavored tobacco products. For that reason, the
`
`ordinance is not like those in past cases (where sales were permitted but restricted to certain
`
`types of stores). The saving clause does no saving here.
`
`The City’s arguments on implied preemption fare no better. The City’s ordinance
`
`impedes Congress’s choice to have FDA set national standards and determine whether
`
`flavored tobacco products should remain on the market. In addition, the ban interferes with
`
`Congress’s choice to have a single regulatory review channel for new tobacco products.
`
`Finally, the City is wrong on irreparable harm and the equities; both favor a
`
`preliminary injunction. But regardless, this case is primed for judgment. Because the City’s
`
`ban is preempted, the Court should deny the Defendants’ motion to dismiss and instead
`
`consolidate the hearing on Plaintiffs’ motion for a preliminary injunction with the trial on
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`the merits and enter judgment in favor of Plaintiffs.
`
`2
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`

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`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 8 of 23
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`ARGUMENT
`
`The Court should deny Defendants’ motion to dismiss because federal law preempts
`
`
`
`
`
`
`
`the City’s ordinance banning all flavored tobacco products. Instead, the Court should grant
`
`Plaintiffs’ motion for a preliminary injunction. Plaintiffs are likely to succeed on the merits,
`
`they face irreparable harm, and the equities favor an injunction. The Court should also
`
`consolidate the hearing on that motion with a trial on the merits and enter judgment in favor
`
`of Plaintiffs. At bottom, this case presents the purely legal question of whether federal law
`
`preempts Edina’s ban. There is no need to delay final judgment for Plaintiffs. See Alex’s
`
`Transp., Inc. v. Colorado Pub. Utilities Comm’n, 88 F. Supp. 2d 1147, 1148 (D. Colo.),
`
`aff’d, 242 F.3d 387 (10th Cir. 2000) (consolidating under Rule 65 in a preemption case).
`
`I.
`
`THE COURT SHOULD DENY THE MOTION TO DISMISS.
`Federal Law Expressly Preempts the City’s Ban on Flavored Tobacco
`A.
`Products.
`The City’s ban is a tobacco product standard that is different
`1.
`from, and in addition to, federal standards.
`Congress expressly preempted all local efforts to set tobacco product standards that
`
`differ from or are in addition to federal requirements. 21 U.S.C. § 387p(a)(2)(A) (“Tobacco
`
`Preemption Clause”). That the City does not deny. Instead, the City leads by appearing to
`
`invoke a “presumption” against preemption. MTD 7-8. That presumption has no place here.
`
`As the Supreme Court has explained, “because the statute contains an express pre-emption
`
`clause, we do not invoke any presumption against pre-emption but instead focus on the
`
`3
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 9 of 23
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`
`
`
`
`plain wording of the clause.” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938,
`
`1946 (2016). In fact, elsewhere, the City agrees that “[s]ince the plain language of the
`
`preemption clause offers the best evidence of Congress’s preemptive intent, the analysis
`
`must begin there.” MTD 9. And the plain wording of the Tobacco Preemption Clause
`
`makes clear that localities cannot set tobacco product standards that are “different from, or
`
`in addition to,” federal standards. 21 U.S.C. § 387p(a)(2)(A). Indeed, in the analogous
`
`context of the Medical Device Act, courts have refused to apply any presumption against
`
`preemption because “[i]t is well established that the [Act] expressly preempts state
`
`requirements that are ‘different from, or in addition to’ federal requirements and that was
`
`the clear intention of Congress.” Billetts v. Mentor Worldwide, LLC, 2019 WL 4038218,
`
`at *6 (C.D. Cal. Aug. 27, 2019); Olmstead v. Bayer Corp., 2017 WL 3498696, at *3 n.1
`
`(N.D.N.Y. Aug. 15, 2017) (“Plaintiff’s argument that there is a strong presumption against
`
`preemption and that this presumption applies to the MDA’s express preemption clause is
`
`frivolous.”). Presumption or not, however, the Tobacco Preemption Clause covers the
`
`City’s ban.
`
`First, tobacco product standards include the “additives” in tobacco products.
`
`21 U.S.C. § 387g(a)(4)(B)(i). Because a flavor is an additive, a regulation that limits
`
`whether flavors can be added to tobacco products is a tobacco product standard. Id.
`
`§ 387(1). The City responds that it is “not attempting to tell Plaintiffs how to manufacture
`
`their products.” MTD 14. Instead, the City says, it bans “products with a particular taste or
`
`4
`
`

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`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 10 of 23
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`
`
`
`
`smell, other than the taste of tobacco, regardless of how that taste or smell comes to be.”
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`Id. But there is only one way a taste or aroma other than the taste or aroma of tobacco can
`
`come to be in a tobacco product—through an additive. The ordinance recognizes as much
`
`by explicitly regulating what “any tobacco, tobacco-related product, or tobacco-related
`
`device” may “contain[]” (in terms of a “distinguishable” “taste or smell”) even “prior to
`
`… consumption or use of the product or device.” Edina City Code § 12-189 (emphases
`
`added). The City musters no response to that fact.
`
`Second, quite apart from “additives,” a regulation dictating what characterizing
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`flavors can be in a tobacco product is a “provision respecting the … properties of the
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`tobacco product.” 21 U.S.C. § 387g(a)(4)(B)(i) (emphasis added). A “property” of a
`
`product is an “attribute, characteristic, or quality.” Oxford English Dictionary, “Property”
`
`(2020), available at https://www.oed.com. In turn, the “taste or aroma” of a product is a
`
`quintessential “attribute, characteristic, or quality” of the product. Webster’s Third New
`
`Int’l Dictionary 1818 (1981) (defining “property” as “an effect that a material object” has
`
`“on one or more of the senses of an observer”). For example, the flavor of a cherry is not
`
`an “additive” because no one (other than Mother Nature) added an ingredient to the fruit
`
`to produce the flavor. But the cherry’s flavor is obviously a property of the fruit—it is what
`
`distinguishes it from other fruits. The City does not contest that its ordinance does regulate
`
`the properties of tobacco products. And because of that, the City has effectively conceded
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`that its ban is a tobacco product standard. At the very least, however, the City has forfeited
`
`5
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 11 of 23
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`
`
`
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`any argument on the properties point. See Shanklin v. Fitzgerald, 397 F.3d 596, 601 (8th
`
`Cir. 2005).
`
`As if all of that were not enough, both Congress and FDA have made clear that a
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`regulation barring flavors in tobacco products is a product standard. Congress said so in
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`the “special rule for cigarettes,” calling its ban on characterizing flavors in cigarettes other
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`than tobacco or menthol, a “tobacco product standard[ ].” 21 U.S.C. §§ 387g(a)(1)(A),
`
`387g(a)(1)(B). And FDA has repeatedly called regulations of flavors “tobacco product
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`standards.” See ECF No. 28, Prelim. Inj. 11-12 (“PI Br.”). The City offers no reason to
`
`ignore Congress and FDA.
`
`Indeed, FDA would surely be surprised to learn that a ban on flavors is not a tobacco
`
`product standard. FDA believes that it may regulate flavors in tobacco products through its
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`statutory authority to set tobacco product standards. See 21 U.S.C. § 387g(a)(1)(A); see
`
`also PI Br. 11-12. But if the City is correct—if a ban on flavors is not a tobacco product
`
`standard—then it stands to reason that FDA cannot ban flavors under its power to set
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`product standards. Such a result would upend Congress’s intent to have national standards:
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`States and localities would be free to regulate what flavors can be added to tobacco
`
`products, while FDA would stand powerless. But see Tobacco Control Act § 3(3), 123 Stat.
`
`1782 (codified at 21 U.S.C. § 387 note). That result is precisely the opposite of what
`
`Congress envisioned. The City’s reading must therefore be rejected.
`
`6
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 12 of 23
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`
`
`
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`The City places great weight on the Second Circuit’s decision in U.S. Smokeless
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`Tobacco Manufacturing Co. v. City of N.Y., 708 F.3d 428, 432 (2d Cir. 2013), arguing that
`
`tobacco product standards can only relate to the manufacturing process. MTD 13-15. But
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`U.S. Smokeless did not address whether the flavor of a tobacco product was a “property”
`
`of the product; it appears no party raised the issue. 708 F.3d at 434-35. Even to the extent
`
`that opinion can be read to have considered “tobacco product standards” more broadly, that
`
`court made clear that “any purported sales ban that in fact functions as a command to
`
`tobacco manufacturers to structure their operations in accordance with locally prescribed
`
`standards would not escape preemption simply because the City framed it as a ban on the
`
`sale of tobacco produced in whatever way it disapproved.” Id. at 434. That is true here. By
`
`enacting a wholesale ban on the sale of flavored tobacco products—something New York
`
`City did not do—the City has created a tobacco product standard.1
`
`Moreover, in the Tobacco Preemption Clause, Congress, separate from preempting
`
`certain state and local “tobacco product standards,” also preempted state and local “good
`
`manufacturing standards.” 21 U.S.C. § 387p(a)(2)(A). If “tobacco product standard” meant
`
`nothing more than “manufacturing standards”—as the City argues—then there would have
`
`been no need for Congress to list “tobacco product standards” at all. As the City recognizes,
`
`
`1 The City’s other appellate case did not consider what constitutes a tobacco product
`standard. Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71, 82
`(1st Cir. 2013) (NATO). That case only considered the saving clause, which does not apply
`here. See infra Part I.A.2.
`
`7
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 13 of 23
`
`
`
`
`
`however, “[a] court should ‘avoid a statutory construction that would render another part
`
`of the same statute superfluous.’” MTD 10 (quoting United States v. Stanko, 491 F.3d 408,
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`413 (8th Cir. 2007).
`
`Finally, the City’s attempt to distinguish National Meat Association v. Harris,
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`565 U.S. 452 (2012), fails. The Supreme Court squarely held that a state cannot skirt a
`
`preemption clause related to product manufacturing merely by labeling the state law a
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`“sales restriction.” Id. at 463-64. As explained, even if the preemption clause were
`
`countertextually limited to the regulation of properties that pertain to manufacturing, the
`
`City has regulated the manufacturing process. The ordinance forbids products that
`
`“contain[]” characterizing flavors even “prior to … consumption or use of the product or
`
`device.” Edina City Code § 12-189 (emphasis added). The City then enforces that
`
`prohibition by banning the sale of products that do not conform to the City’s manufacturing
`
`standard. That is precisely what California did in National Meat.
`
`More fundamentally, the Supreme Court’s rationale plainly extends beyond sales
`
`restrictions paired with manufacturing restrictions. As the Court explained, “if the sales
`
`ban were to avoid [the Act’s] preemption clause, then any State could impose any
`
`regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in
`
`whatever way the State disapproved.” Nat’l Meat, 565 U.S. at 464. Therefore “it ‘would
`
`make no sense’ to allow state regulations to escape preemption because they addressed the
`
`purchase, rather than manufacture, of a federally regulated product.” Id. (quoting Engine
`
`8
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 14 of 23
`
`
`
`
`
`Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 255 (2004)). Put simply, “a
`
`standard is a standard even when not enforced through manufacturer-directed regulation.”
`
`Engine Mfrs., 541 U.S. at 254.
`
`In addition, the Tobacco Control Act’s preemption clause has a broader reach than
`
`the one at issue in National Meat. The statute in National Meat preempted only those
`
`requirements “with respect to premises, facilities and operations” subject to the statute.
`
`21 U.S.C. § 678. The Tobacco Preemption Clause, however, targets regulations related to
`
`the “properties” of the tobacco products themselves. The clause is not limited to the
`
`manufacturing process. See supra pp. 4-5. Indeed, the Tobacco Preemption Clause also
`
`covers labeling and registration. 21 U.S.C. § 387p. The City’s purported distinction of
`
`National Meat is unpersuasive.2
`
`In sum, a ban on flavors is a tobacco product standard for two independent reasons:
`
`flavors are “additives” and “properties” of the products. And because Edina’s standard is
`
`different from, and in addition to, federal ones, federal law preempts it.
`
`
`2 In addition, if the City were correct, then municipalities could ban tobacco
`products that contain more nicotine than the locality would like or that failed to go through
`a local premarket review process. PI Br. 18. The City disagrees because, according to the
`City, the only way to determine whether particular products are banned under those rules
`is to “look at the manufacturing process.” MTD 19. That is not true. One can measure
`nicotine levels without knowing how the cigarette was manufactured. And one can learn
`whether a product has been reviewed by a regulatory body without lifting the hood on the
`manufacturing process.
`
`9
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 15 of 23
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`
`
`
`
`The Act’s saving clause does not save the City’s ban.
`2.
`The City has not carried its burden to prove the Tobacco Control Act’s saving clause
`
`resuscitates the City’s ordinance. See Puerto Rico Tel. Co. v. Municipality of Guayanilla,
`
`450 F.3d 9, 21 (1st Cir. 2006); Carter v. Novartis Consumer Health, Inc., 582 F. Supp. 2d
`
`1271, 1288 (C.D. Cal. 2008) (holding that, under the Food, Drug, and Cosmetic Act,
`
`plaintiffs must “prove that their state law claims satisfy the savings clause”). As Reynolds
`
`explained, the saving clause does not apply because: (1) the ordinance does not turn on the
`
`age of the individuals buying tobacco products, (2) the ordinance is a prohibition, not a
`
`restriction, and (3) the saving clause must be narrowly interpreted lest it swallow the
`
`preemption clause. PI Br. 15-21. The City’s counterarguments miss the mark.
`
`First, the City claims that the phrase “by individuals of any age” in the saving clause
`
`simply “clarifies that local authorities may regulate tobacco sales for persons of any age.”
`
`But if that were the case, “by individuals of any age” would be superfluous. Congress could
`
`have omitted the clause entirely and had the same statute. Such a reading cannot be
`
`accepted. Stanko, 491 F.3d at 413.3
`
`Second, the City complains that Plaintiffs “offer no citation” for the fact that sales
`
`requirements must relate to the “time, place, or manner” of the sale. MTD 17. By definition,
`
`however, a sales requirement must relate to one of those three attributes of the sale.
`
`
`3 The City notably does not contest that the age phrase applies to sales requirements.
`
`10
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 16 of 23
`
`
`
`
`
`Merriam-Webster Dictionary (online ed.) (defining “requirement” as “something essential
`
`to the existence or occurrence of something else: CONDITION”). One cannot ban the sale
`
`of something and call the ban a sales requirement. See U.S. Smokeless, 708 F.3d at 435
`
`(noting the difference between the preservation clause (which lists “prohibit[ions]”) and
`
`the saving clause (which does not)). The City claims that because the “sale of all tobacco-
`
`flavored products remains unlimited,” the ordinance does not amount to a prohibition. But
`
`the ordinance does ban all sales of those tobacco products that impart a characterizing
`
`flavor other than tobacco. There is no requirement anyone can meet to sell or buy those
`
`products. No matter where the consumer goes and no matter how old he is, he cannot
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`purchase a flavored tobacco product in the City. That is a prohibition. And as the City’s
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`own cases make clear, the saving clause permits sales restrictions that regulate when,
`
`where, and how a product can be sold, but does not save “blanket prohibition[s]” on sales.
`
`NATO, 731 F.3d at 82.4
`
`Third, the City maintains that a broad interpretation of the saving clause would not
`
`upset the careful regulatory scheme Congress has created because the ordinance “does not
`
`interfere” with “tobacco product standards.” MTD 17. As explained, however, the
`
`ordinance does enact a tobacco product standard. Supra pp. 3-9.
`
`
`4 The City surprisingly says “the saving clause does not apply to requirements
`relating to the sale.” MTD 17. Plaintiffs assume that was a typo.
`
`11
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 17 of 23
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`
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`Federal Law Impliedly Preempts the City’s Ban.
`B.
`In addition to being expressly preempted, the City’s ban on flavored tobacco
`
`products is also impliedly preempted because it “stands as an obstacle to the
`
`accomplishment and execution of the full purposes and objectives of Congress.” Crosby v.
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`Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). In particular, the ordinance
`
`interferes with Congress’s goal of having national manufacturing standards. Tobacco
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`Control Act § 3(3), 123 Stat. 1782 (codified at 21 U.S.C. § 387 note). The ban also
`
`undermines Congress’s and FDA’s judgment that certain flavored tobacco products should
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`remain on the market. See id. § 3(7). And the ordinance interferes with Congress’s detailed
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`regulatory process as the sole method for evaluating the design and sale of new tobacco
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`products. The City does not contest the third point, thereby forfeiting any arguments on
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`that score. Shanklin, 397 F.3d at 601.
`
`The arguments the City does make are unconvincing. According to the City, because
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`the Tobacco Control Act contains an express preemption clause, the preemptive effect of
`
`the Act ends there. MTD 20. But as the Supreme Court has repeatedly underscored, the
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`existence of an express-preemption clause “does not bar the ordinary working of [implied]
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`pre-emption principles.” Hillman v. Maretta, 569 U.S. 483, 498 (2013) (emphasis added);
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`see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 352 (2001). Moreover, as
`
`the City recognizes, the Eighth Circuit has said that “whatever the force of the presumption
`
`against preemption as an interpretive tool, the [Supreme] Court has recognized that the
`
`12
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 18 of 23
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`
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`presumption should not apply where considerable federal interests are at stake.” MTD 27
`
`(quoting Bell v. Blue Cross & Blue Shield, 823 F.3d 1198, 1201 (8th Cir. 2016)). There are
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`obviously considerable federal interests at stake here—specifically, Congress’s decision
`
`both to have singular, national standards for the manufacturing of tobacco products and to
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`have certain tobacco products remain on the market.
`
`The City then narrowly argues that Congress did not intend to preempt local bans
`
`on menthol-flavored cigarettes. MTD 25-28. The City is wrong. For one, Congress
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`expressly declined to create a product standard for menthol cigarettes and directed FDA to
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`study the issue (which FDA has done on two separate occasions, see PI Br. 23). Congress
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`thus did not intend for localities to enact their own, different standards for menthol
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`cigarettes.
`
`To this end, the City’s reliance on the preservation clause is misplaced. According
`
`to the City, because the preservation clause lists “measure[s] relating to or prohibiting the
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`sale … of tobacco products,” Congress left it to the local governments to enact wholesale
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`bans on categories of tobacco products. MTD 26. The preservation clause, however, is
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`qualified by the preemption clause,5 which specifically disarms local governments from
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`banning sales based on the products’ additives or properties—that is, by creating a tobacco
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`product standard. (The preservation clause is also limited to age-based prohibitions in any
`
`
`5 It is puzzling for the City to say (MTD at 11) that the preservation clause lacks
`“any exception or qualification.”
`
`13
`
`

`

`CASE 0:20-cv-01402-PJS-LIB Document 41 Filed 08/06/20 Page 19 of 23
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`
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`event.) The preservation clause does not contradict Congress’s intent that manufacturers
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`should only have to comply with one set of “national standards” when it comes to “the
`
`manufacture of tobacco products and the … amount of ingredients used in such products.”
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`TCA § 3(3), 123 Stat. 1782 (codified at 21 U.S.C. § 387 note).
`
`Striking more broadly, the City argues that “Congress intended to empower state
`
`and local governments to decide whether to ban tobacco sales, even completely.” MTD 21.
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`The Tobacco Control Act directly contradicts that notion. Congress listed as a purpose “to
`
`continue to permit the sale of tobacco products to adults in conjunction with measures to
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`ensure that they are not sold or accessible to underage purchasers.” TCA § 3(7).
`
`The City also contends that “Plaintiffs have previously tried to make this argument”
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`and that courts have rejected it. MTD 22. The City goes on to cite cases that dealt with
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`statutes that pre-date the Tobacco Control Act

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