FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`R.J. REYNOLDS TOBACCO COMPANY;
`AMERICAN SNUFF COMPANY; SANTA
`FE NATURAL TOBACCO COMPANY,
`INC.,
`
`Plaintiffs-Appellants,
`
` No. 20-55930
`
`D.C. No.
`2:20-cv-04880-
`DSF-KS
`
`
`OPINION
`
`
`
`v.
`
`
`COUNTY OF LOS ANGELES; COUNTY
`OF LOS ANGELES BOARD OF
`SUPERVISORS; HILDA L. SOLIS;
`MARK RIDLEY-THOMAS; SHEILA
`KUEHL; JANICE HAHN; KATHRYN
`BARGER, each in his or her official
`capacity as a member of the Board
`of Supervisors,
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the Central District of California
`Dale S. Fischer, District Judge, Presiding
`
`Argued and Submitted October 19, 2021
`Pasadena, California
`
`Filed March 18, 2022
`
`
`

`

`2 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`
`Before: Ryan D. Nelson and Lawrence VanDyke, Circuit
`Judges, and Karen E. Schreier,* District Judge.
`
`Opinion by Judge VanDyke;
`Dissent by Judge Nelson
`
`
`SUMMARY**
`
`
`
`
`Preemption / Tobacco Control Act
`
`
`The panel affirmed the district court’s dismissal of an
`
`action brought by tobacco companies, alleging that the
`Family Smoking Prevention and Tobacco Control Act
`(“TCA”) preempts the County of Los Angeles’s ban on the
`sale of all flavored tobacco products.
`
`The panel held that the TCA authorizes the Food and
`
`Drug Administration to regulate tobacco products and
`expressly preempts some contrary state or local regulations,
`while also expressly preserving and saving from preemption
`other state and local regulatory authority over tobacco. The
`panel held that the TCA’s text, framework, and historical
`context reveal that it carefully balances federal and local
`power by carving out the federal government’s sole authority
`to establish the standards for tobacco products, while
`preserving state, local, and tribal authority to regulate or ban
`altogether sales of some or all tobacco products.
`
`
`* The Honorable Karen E. Schreier, United States District Judge for
`the District of South Dakota, sitting by designation.
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 3
`
`The panel wrote that the TCA’s “unique tripartite
`
`preemption structure” governed its analysis. The TCA
`includes a “preservation clause,” which preserves state,
`local, and tribal power to enact any regulation concerning
`tobacco products that is “in addition to or more stringent”
`than those promulgated by the TCA. The TCA’s preemption
`clause reads as follows: “No . . . 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 [the
`TCA] relating to tobacco product standards, premarket
`review, adulteration, misbranding, labeling, registration,
`good manufacturing standards, or modified risk tobacco
`products.” An immediately following savings clause
`instructs that 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 panel held that, properly understood, the TCA’s
`
`preemption clause does not preclude non-federal sales
`regulations such as the County’s sales ban. But even if it
`did, the County’s sales ban would nonetheless be exempted
`from preemption because it falls within that clause’s text as
`an allowed local requirement relating to the sale of tobacco
`products. Either way, the TCA does not expressly preempt
`the County’s sales ban. The panel also held that, because the
`TCA explicitly preserves local authority to enact more
`stringent regulations than the TCA, the County’s sales ban
`does not pose an impermissible obstacle to the TCA’s
`purposes or objectives
`regarding
`flavored
`tobacco.
`Accordingly, the County’s sales ban is neither expressly nor
`impliedly preempted.
`
`

`

`4 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
` Dissenting, Judge R. Nelson wrote that because Los
`Angeles’s ban falls within the TCA’s preemption clause and
`is neither preserved nor saved, he would hold that it is
`expressly preempted. Judge R. Nelson wrote that the ban
`fell within the preemption clause because it was a
`requirement different from or in addition to any TCA
`requirement relating to tobacco product standards, which can
`relate both to manufacturing and to sales. Judge R. Nelson
`wrote that, by its terms, the preservation clause does not
`apply to the preemption clause, but rather clarifies that no
`other provision of the statute has any preemptive effect and
`that the authorities of federal agencies and Indian tribes are
`not preempted by the TCA. Finally, Judge R. Nelson would
`hold that the savings clause only saves for states the
`authority to enact age requirements.
`
`
`
`COUNSEL
`
`
`Noel J. Francisco (argued), Christian G. Vergonis, Ryan J.
`Watson, and Andrew J. M. Bentz, Jones Day, Washington,
`D.C.; Jason C. Wright, Jones Day, Los Angeles, California;
`for Plaintiffs-Appellants.
`
`Kent R. Raygor (argued) and Valerie E. Adler, Sheppard
`Mullin Richter & Hampton LLP, Los Angeles, California,
`for Defendants-Appellees.
`
`Cory L. Andrews and John M. Masslon II, Washington
`Legal Foundation, Washington, D.C., for Amicus Curiae
`Washington Legal Foundation.
`
`Rob Bonta, Attorney General; Renu R. George, Senior
`Assistant Attorney General, Nicholas M. Wellington and
`James V. Hart, Supervising Deputy Attorneys General; Peter
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 5
`
`F. Nascenzi, Deputy Attorney General; Office of the
`Attorney General, Sacramento, California; for Amicus
`Curiae State of California.
`
`Jordan Raphael, Byron Raphael LLP, Los Angeles,
`California; Dennis A. Henigan, Campaign for Tobacco-Free
`Kids, Washington, D.C.; for Amici Curiae Public Health and
`Medical Organizations.
`
`Rachel Bloomekatz, Columbus, Ohio, for Amici Curiae
`Public Health Law Center, Action on Smoking and Health,
`California State Association of Counties, ChangeLab
`Solutions,
`International City/County Management
`Association, International Municipal Lawyers Association,
`Legal Resource Center for Public Health Policy, National
`Association of Counties, National League of Cities, Public
`Health Advocacy Institute, and U.S. Conference of Mayors.
`
`
`
`
`
`
`

`

`6 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`
`OPINION
`
`VANDYKE, Circuit Judge:
`
`I. INTRODUCTION
`
`Until just over a decade ago, tobacco products were
`regulated almost exclusively by the states and local
`governments, with
`little federal
`involvement.
` Then
`beginning in the late 1990’s, the U.S. Food and Drug
`Administration first sought to exert federal regulatory
`authority over such products. This initial attempt was
`swiftly rebuffed by the Supreme Court, which concluded the
`FDA lacked that authority under then-existing statutes. See
`FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
`126 (2000). In response, Congress passed the Family
`Smoking Prevention and Tobacco Control Act (“TCA”),
`Pub. L. No. 111–31, 123 Stat. 1776 (2009), codified at
`21 U.S.C. § 387 et seq., which authorized the FDA to
`regulate tobacco products and expressly preempted some
`contrary state or local regulations, while also expressly
`preserving and saving from preemption other state and local
`regulatory authority over tobacco.
`
`The boundary between the TCA’s preemption clause and
`its preservation and savings clauses is the subject of the
`dispute in this case. The County of Los Angeles claims that
`the TCA’s preservation and savings clauses permit its
`decision to ban the sale of all flavored tobacco products.
`Predictably, multiple tobacco companies have challenged
`the County’s ban, arguing that the TCA’s preemption clause
`both expressly and impliedly preempts the ban.
`
`The TCA’s unique tripartite preemption structure
`governs our analysis of these issues. Its text, framework, and
`historical context reveal that it carefully balances federal and
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 7
`
`local power by carving out the federal government’s sole
`authority to establish the standards for tobacco products,
`while preserving state, local, and tribal authority to regulate
`or ban altogether sales of some or all tobacco products.
`Properly understood, the TCA’s preemption clause does not
`preclude non-federal sales regulations such as the County’s
`sales ban challenged in this case. But even if it did, the
`County’s sales ban would nonetheless be exempted from
`preemption by the TCA’s savings clause because it easily
`falls within
`that clause’s
`text as an allowed
`local
`“requirement[] relating to the sale
`. . . of[] tobacco
`products.” 21 U.S.C. § 387p(a)(2)(B). Either way, the TCA
`does not expressly preempt the County’s sales ban. And
`given that the TCA explicitly preserves local authority to
`enact “more stringent” regulations than the TCA, the
`County’s sales ban does not pose an impermissible obstacle
`to the TCA’s purposes or objectives regarding flavored
`tobacco. It is therefore neither expressly nor impliedly
`preempted, and we affirm the district court.
`
`II. BACKGROUND
`
`1. States and Localities Historically Possessed Broad
`Power to Regulate and Ban Tobacco Products.
`
`The TCA’s tripartite preemption provision can be
`properly understood only against the historical backdrop of
`states and localities’ longstanding role as the primary
`regulators of tobacco products. See Stewart v. Dutra Const.
`Co., 543 U.S. 481, 487 (2005) (interpreting a federal statute
`by looking to the “backdrop against which Congress” acted).
`Over a century ago, the Supreme Court first recognized that
`states, because of public health concerns, could prohibit the
`sale of cigarettes. See Austin v. State of Tennessee, 179 U.S.
`343, 348–49 (1900) (“[W]e think it within the province of
`the legislature to say how far [cigarettes] may be sold, or to
`
`

`

`8 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`prohibit their sale entirely . . . provided no discrimination be
`used . . . and there be no reason to doubt that the act in
`question is designed for the protection of the public
`health.”). In the intervening century, and in response to
`growing awareness of the harmful effects of cigarettes,
`Congress enacted various statutory provisions focusing on
`consumer education through advertising and labeling
`requirements. See, e.g., Federal Cigarette Labeling and
`Advertising Act (“FCLAA”), Pub. L. No. 89–92, 79 Stat.
`282 (1965) (codified as amended at 15 U.S.C. §§ 1331–
`1341), see also Graham v. R.J. Reynolds Tobacco Co.,
`857 F.3d 1169, 1186–87 (11th Cir. 2017) (en banc)
`(surveying the development of federal tobacco laws).1 But
`these federal statutes never preempted state and localities’
`traditional power to restrict or ban sales of tobacco products.
`See id.
`
`During this period, states also played key roles in
`indirectly regulating tobacco products through litigation. In
`the 1990s, after numerous heads of major tobacco companies
`denied under oath the addictiveness of nicotine, several
`
`1 See also Public Health Cigarette Smoking Act of 1969, Pub. L. No.
`91–222, 84 Stat. 87; Alcohol and Drug Abuse Amendments of 1983,
`Pub. L. No. 98–24, 97 Stat. 175; Comprehensive Smoking Education Act
`of 1984, Pub. L. No. 98–474, 98 Stat. 2200 (1984); Comprehensive
`Smokeless Tobacco Health Education Act of 1986, Pub. L. No. 99–252,
`100 Stat. 30. While “the ADAMHA Reorganization Act, Pub. L. No.
`102-321, 106 Stat. 323 (1992), condition[ed] certain block grants on
`states making it unlawful for any manufacturer, retailer, or distributor of
`tobacco products to sell or distribute any such product to any individual
`under the age of 18,” Graham, 857 F.3d at 1187 (citation and internal
`quotation marks omitted), the strings attached to federal grants did not
`preempt state or local authority from regulating the sale or ban of these
`products; quite the opposite, they strongly incentivized states to exercise
`their traditional authority over tobacco-related sales. See 42 U.S.C.
`§ 300x-26.
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 9
`
`states sued their companies. See Regulation of Tobacco
`Products (Part 1): Hearings Before the Subcomm. on Health
`& the Env’t, 103d Cong. 628 (1994); Barry Meier,
`Remaining States Approve the Pact on Tobacco Suits, N.Y.
`TIMES, Nov. 21, 1998, at A1. The lawsuits resulted in a
`“landmark agreement” between the tobacco companies and
`the states, where the companies agreed to monetary
`payments and permanent injunctive relief. See Lorillard
`Tobacco v. Reilly, 533 U.S. 525, 533 (2001).
`
`Meanwhile, states continued to enact laws regulating the
`sale and use of cigarettes and tobacco products, including
`imposing numerous restrictions on tobacco sales.2 These
`restrictions included, for example, prohibitions on sales of
`tobacco products in vending machines and near schools. See
`Paul A. Diller, Why Do Cities Innovate in Public Health?
`Implications of Scale and Structure, 91 Wash. U. L. Rev
`1219, 1231–35 (2014) (discussing state and local bans of
`flavored cigarettes passed before the TCA). Some localities
`even banned sales of cigarettes and vape products entirely
`from retail stores. See, e.g., Manhattan Beach, Cal.,
`Ordinance 20-0007. Because the FDA lacked authority to
`regulate tobacco products until Congress enacted the TCA
`
`
`2 See, e.g., Stop Tobacco Access to Kids Enforcement (“STAKE”)
`Act, 1994 Cal. Stat. 1009 (codified at Cal. Bus. & Prof. Code §§ 22950–
`64) (including mandates such as “no cigarette or tobacco product shall
`be sold, offered for sale, or distributed from a vending machine or
`appliance, or any other coin or token operated mechanical device
`designed or used for vending purposes, id. § 22960(a)); see also
`Cigarette and Tobacco Products Licensing Act of 2003 (codified at Cal.
`Bus. & Prof. Code §§ 22970–22995) (requiring licensing throughout the
`distribution chain from manufacturer to retailer); Cal. Rev. & Tax. Code
`§§ 30131–30131.6 (significantly increasing the state’s cigarette and
`tobacco taxes to fund, in part, anti-smoking efforts).
`
`

`

`10 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`in 2009,3 the history of tobacco regulation is, until recently,
`one of state and local action.
`
`2. The TCA Continued to Preserve State and Local
`Power Over Tobacco Sales.
`
`Given this extensive background of state and local
`tobacco regulation, it would have been surprising if
`Congress had broadly jettisoned the longstanding tradition
`of states and localities’ role in the regulation of sales of
`tobacco products when it enacted the TCA in 2009. The text
`of the TCA itself demonstrates that it did not. Instead,
`Congress made an “explicit decision to preserve for the
`states a robust role in regulating, and even banning, sales of
`tobacco products.” U.S. Smokeless Tobacco Mfg. Co. v. City
`of New York, 708 F.3d 428, 436 (2d Cir. 2013).
`
`Specifically, the TCA sought to “authorize the [FDA] to
`set national standards controlling the manufacture of
`tobacco products and the identity, public disclosure, and
`amount of ingredients used in such products.” Pub. L. No.
`111-31, 123 Stat. 1778 (2009) (emphasis added). In doing
`so, the TCA balances state and federal power over tobacco
`regulation by way of a unique three-layered preservation
`provision.4 The first clause of the provision, labeled the
`
`3 See R.J. Reynolds Tobacco Co. v. City of Edina, 482 F. Supp. 3d
`875, 880–81 (D. Minn. 2020) (observing that the TCA “was partly a
`response to the FDA’s earlier unsuccessful attempt to assert jurisdiction
`over tobacco products in order to enact age-specific tobacco regulations”
`(citing Brown & Williamson Tobacco Corp., 529 U.S. at 125–26)); see
`also U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp.
`2d 329, 336 (S.D.N.Y. 2010) (same).
`
`4 Because this is a case about preemption, it is easy to refer to
`21 U.S.C. § 387p of the TCA as a “preemption provision.” But it is more
`
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 11
`
`preservation clause, broadly preserves state, local, and tribal
`power to enact any regulation concerning tobacco products
`that is “in addition to or more stringent” than those
`promulgated by the TCA:
`
`Except as provided in [the preemption
`clause], nothing in this subchapter, or rules
`promulgated under this subchapter, shall be
`construed to limit the authority of a . . .
`political subdivision of a State . . . 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 or otherwise
`
`
`properly characterized as a “preservation provision.” While § 387p does
`contain the preemption clause that forms the basis of Appellants’
`challenge to the County’s ban (see id. § 387p(a)(2)(A)), that preemption
`clause is sandwiched between two clauses that expressly preserve and
`exempt from preemption broad non-federal regulatory authority over
`tobacco products (see id. §§ 387p(a)(1), (a)(2)(B)). Indeed, even the title
`of § 387p (“Preservation of State and Local Authority”) evinces its
`predominant purpose to preserve rather than preempt non-federal
`regulatory authority. This overall structure of the TCA’s “preservation
`provision” cannot be overemphasized, and as discussed further below,
`distinguishes the TCA’s preemption clause from dissimilar provisions in
`other federal statutes considered by the Supreme Court.
`
`

`

`12 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`
`affect any State, tribal, or local taxation of
`tobacco products.
`
`21 U.S.C. § 387p(a)(1) (emphasis added). Of particular
`relevance here, the TCA expressly reserves localities’ ability
`to enact any regulations “relating to or prohibiting the sale
`. . . or use of tobacco products by individuals of any age.”
`Id.5
`
`its broad
`follows
`immediately
`then
`The TCA
`preservation clause with a preemption clause that expressly
`overrides the preservation clause in the case of any conflict
`between the two provision’s terms. The preemption clause
`reads:
`
`No . . . 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
`
`
`5 There is a scrivener’s error in both the TCA’s preservation and
`savings clauses. Both clauses contain similar statements allowing non-
`federal laws “relating to or prohibiting the sale . . . or use of tobacco
`products by individuals of any age.” Id. § 387p(a)(1) (emphasis added);
`see also id. § 387p(a)(2)(B) (similar). The drafters of these clauses used
`the preposition “by” in the last prepositional phrase “by individuals of
`any age,” presumably because the preposition “by” matches the closest
`object (“use”) in the preceding series of objects (thus, “use . . . by
`individuals of any age”). But while the preposition “by” makes sense for
`some of the other objects in the series (e.g., “possession . . . by
`individuals of any age”), it doesn’t make sense for others, such as “sale”
`(it should be “sale . . . [to] individuals of any age”) or “advertising and
`promotion” (“advertising and promotion . . . [to] individuals of any
`age”). Correcting for this drafting error, we replace the word “by” with
`a bracketed “[to]” in subsequent quotations in this opinion where
`appropriate.
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 13
`
`
`subchapter relating
`tobacco product
`to
`standards, premarket review, adulteration,
`misbranding,
`labeling, registration, good
`manufacturing standards, or modified risk
`tobacco products.
`
`Id. § 387p(a)(2)(A) (emphasis added). While the TCA does
`not explicitly define “tobacco product standards,” it uses that
`phrase elsewhere in the TCA when referring to various
`characteristics of
`tobacco products,
`such as “the
`construction,
`components,
`ingredients,
`additives,
`constituents . . . and properties of the tobacco products”
`(among other references). See id. § 387g(a)(4)(B)(i). It also
`uses the phrase broadly as encompassing some federal “sale
`and distribution . . . restrict[ions],” id. § 387g(a)(4)(B)(v)—
`including the federal ban on most flavored cigarettes, id.
`§ 387g(a)(1)(A)—as well as tobacco labeling requirements.
`Id. § 387g(a)(4)(C).
`
`Immediately following the TCA’s preemption clause, a
`savings clause then excepts various broadly defined
`categories from preemption. See id. § 387p(a)(2)(B).
`Specifically, the savings clause instructs that 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.
`
`Id. § 387p(a)(2)(B).
`
`

`

`14 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`3. Los Angeles County Banned the Sale of Flavored
`Tobacco Products.
`
`In September 2019, as part of amendments to its business
`licenses and health and safety code, Los Angeles County
`joined at least three states and over 300 local jurisdictions
`across the country by enacting a prohibition on the sale of
`flavored tobacco products. The County’s ordinance reads:
`
`[I]t shall be a violation of this Chapter for a
`tobacco retailer/licensee or its agent(s) or
`employee(s) to sell 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.
`
`LOS ANGELES COUNTY, CAL., CODE § 11.35.070(E) (2019);
`see
`also CTFK, Fact Sheet
`(Oct. 23, 2020),
`https://perma.cc/JGX3-3VZP.
` The ordinance defines
`“flavored tobacco product” as “any tobacco product, as
`defined in this Chapter, which imparts a characterizing
`flavor.”
`
`Id. § 11.35.020(J).
`
`It
`further defines
`“characterizing flavor” as “a taste or aroma, other than the
`taste or aroma of tobacco, imparted either prior to or during
`consumption of a tobacco product.” Id. § 11.35.020(C). The
`ordinance therefore only permits the sale of tobacco products
`with either the taste or aroma of tobacco, or no taste or aroma
`at all. See id.
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 15
`
`4. The District Court Dismissed Appellants’ Case.
`
`Appellants R.J. Reynolds Tobacco Company, American
`Snuff Company, LLC, and Santa Fe Natural Tobacco
`Company, Inc. (Appellants) sued the County of Los Angeles
`and various County officials (Appellees), alleging that the
`TCA expressly and impliedly preempts the County’s
`ordinance. The district court first denied Appellants’ motion
`for a preliminary injunction, finding that they were not likely
`to succeed on the merits of their claims. It then subsequently
`granted Appellees’ Rule 12(b)(6) motion, incorporating the
`reasoning from its denial of the preliminary injunction. It
`also denied Appellants’ motion for summary judgment as
`moot. Judgment was later entered, and Appellants appeal
`that judgment.
`
`III. JURISDICTION AND STANDARD OF REVIEW
`
`“We have appellate jurisdiction under 28 U.S.C.
`§ 1291.” Kashem v. Barr, 941 F.3d 358, 369 (9th Cir. 2019).
`“A dismissal for failure to state a claim pursuant to Federal
`Rule of Civil Procedure 12(b)(6) is reviewed de novo.”
`Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). “We
`[also] review de novo a district court’s application of
`preemption principles.” U.S. Smokeless Tobacco Mfg. Co.,
`708 F.3d at 432 (citation omitted).
`
`IV. DISCUSSION
`
`“The Supremacy Clause provides that the laws of the
`United States ‘shall be the supreme Law of the Land . . . any
`Thing in the Constitution or Laws of any State to the
`Contrary notwithstanding.’” Gonzalez v. Arizona, 677 F.3d
`383, 391–92 (9th Cir. 2012) (en banc) (quoting U.S. Const.
`art. VI, cl. 2). “Under our system of dual sovereignty, courts
`deciding whether a particular state law is preempted under
`
`

`

`16 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`the Supremacy Clause must strive to maintain the delicate
`balance between the States and the Federal Government,
`especially when Congress
`is regulating
`in an area
`traditionally occupied by the States.” Id. (citations and
`internal quotation marks omitted).
`
`The TCA’s text, framework, and historical context
`reflect its attempt to strike such a balance. Its unique
`preemption structure gives the federal government exclusive
`power to set “tobacco product standards,” while preserving
`state, local, and tribal authority to regulate or ban sales of
`those products altogether. Consistent with this structure, it
`would be a mistake to read “tobacco product standards” in
`the TCA’s preemption clause so broadly as to encompass the
`type of sales ban challenged in this case—particularly since
`the TCA both expressly preserves and exempts from
`preemption local authority over that exact type of regulation.
`The preemption clause therefore does not cover the County’s
`sales ban. But even if it did, the savings clause “saves” it
`from preemption because a sales ban qualifies as a
`“requirement[] relating to the sale” of tobacco products.
`
`We therefore hold that TCA does not expressly preempt
`the County’s sales ban. And given that Congress explicitly
`preserved local authority to enact the very type of sales ban
`at issue here, we also reject Appellants’ claim of implied
`preemption.
`
`1. The TCA Does Not Expressly Preempt the County’s
`Sales Ban.
`
`The TCA’s text, structure, and historical context
`precludes express preemption in this case. “Where, as here,
`Congress has specifically addressed the preemption issue,
`our task is primarily one of interpreting what Congress has
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 17
`
`said on the subject.” U.S. Smokeless Tobacco Mfg. Co.,
`708 F.3d at 432.6
`
`We “begin with the wording of [the TCA’s preemption
`provision], but we must also consider the statute as a whole
`to determine whether the local ordinance actually conflicts
`with the overall federal regulatory scheme.” Id. (citation
`omitted); see also Brown & Williamson Tobacco Corp.,
`529 U.S. at 133 (“It is a fundamental canon of statutory
`construction that the words of a statute must be read in their
`context and with a view to their place in the overall statutory
`scheme.” (citation and internal quotation marks omitted)).
`In interpreting statutes wholistically, we must strive to
`
`6 The parties dispute whether a presumption against preemption
`applies, but the Supreme Court has already determined that if a “statute
`contains an express pre-emption clause, we do not invoke any
`presumption against pre-emption but instead focus on the plain wording
`of the clause, which necessarily contains the best evidence of Congress’
`pre-emptive intent.” Puerto Rico v. Franklin California Tax-Free Tr.
`(Franklin), 579 U.S. 115, 125 (2016) (citation and internal quotation
`marks omitted); see also Int’l Bhd. of Teamsters, Loc. 2785 v. Fed. Motor
`Carrier Safety Admin., 986 F.3d 841, 853 (9th Cir. 2021) (relying on
`Franklin in determining that the existence of an express presumption
`clause negated any presumption against preemption); Atay v. Cty. of
`Maui, 842 F.3d 688, 699 (9th Cir. 2016) (same). Appellees argue that
`these cases suggest that only unambiguous express preemption clauses
`override the presumption. But this runs counter to Franklin, where the
`majority and dissent’s debate over the scope of the preemption clause at
`issue in that case demonstrates that it was not, in fact, unambiguous. See
`579 U.S. at 135–37 (Sotomayor, J., dissenting). Appellees also rely on
`two post-Franklin cases from our court that rely on the presumption of
`preemption when evaluating an express preemption clause. See Miller
`v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1021 (9th Cir. 2020);
`California Ins. Guarantee Ass’n v. Azar, 940 F.3d 1061, 1067 (9th Cir.
`2019). But the parties in both of those cases failed to address Franklin.
`Pursuant to Franklin and our court’s application of Franklin, therefore,
`our focus is on the meaning of the TCA’s text without any presumptive
`thumb on the scale.
`
`

`

`18 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES
`
`“giv[e] effect to each word and mak[e] every effort not to
`interpret a provision in a manner that renders other
`provisions of the same statute inconsistent, meaningless or
`superfluous.” Shelby v. Bartlett, 391 F.3d 1061, 1064 (9th
`Cir. 2004) (citation omitted). We also “assum[e] that the
`ordinary meaning of that language accurately expresses the
`legislative purpose.” Engine Mfrs. Ass’n v. S. Coast Air
`Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (citation
`omitted).
`
`a. The Preemption Clause Doesn’t Cover
`County’s Sales Ban.
`
`the
`
`Applying these well-established principles, we first
`conclude that the phrase “tobacco product standards” in the
`TCA’s preemption clause does not encompass the County’s
`sales ban.
`
`We begin with the text of all three adjacent clauses—
`preservation,
`preemption,
`and
`savings—considered
`together. In § 387p of the TCA, the initial preservation
`clause broadly preserves state, local, and tribal authority to
`enact a variety of regulations that are “in addition to, or more
`stringent than” the TCA’s requirements. See 21 U.S.C.
`§ 387p(a)(1). While under the TCA the federal government
`sets the regulatory floor, the plain text of the preservation
`clause allows state, local, and tribal governments to go
`beyond that, including even “prohibiting the sale . . . of
`tobacco products [to] individuals of any age.” Id. (emphasis
`added).
`
`The subsequent preemption clause then carves out eight
`limited exceptions to the preservation clause, each of which
`relates most obviously to the production or marketing
`stages—and not the retail sale—of tobacco products:
`“tobacco product standards, premarket review, adulteration,
`
`

`

` R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 19
`
`misbranding, labeling, registration, good manufacturing
`standards, or modified risk
`tobacco products.”
` Id.
`§ 387p(a)(2)(A).
` For example,
`the TCA describes
`“adulteration” in terms of various issues that could arise
`during the manufacturing or marketing stages. See id.
`§ 387b. Similarly, “registration” requires that “every person
`who owns or operates any establishment in any State
`engaged in the manufacture, preparation, compounding, or
`processing of a tobacco product or tobacco products shall
`register with the Secretary the name, places of business, and
`all such establishments of that person.” Id. § 387e(b)
`(emphasis added). And to qualify as a “modified risk
`tobacco product,” details about the manufacturing and
`marketing processes must be provided. See id. § 387k(d).
`
`While the TCA does not explicitly define “tobacco
`product standards,” it describes that phrase in terms of the
`manufacturing
`and marketing
`stages.
` See
`e.g.,
`§ 387g(a)(4)(B)(i) (requiring tobacco product standards to
`include, where appropriate, “provisions respecting the
`construction,
`components,
`ingredients,
`additives,
`constituents, including smoke constituents, and properties of
`the tobacco product”). Consistent with its surrounding
`categories, it makes sense to view “tobacco product
`standards” in the TCA’s preemption clause as most naturally
`referring to standards pertaining to the production or
`marketing stages up until the actual point of sale. See Rizo
`v. Yovino, 950 F.3d 1217, 1224 (9th Cir. 2020) (en banc)
`(noting the “well-settled rule[] of statutory constr