Case: 20-55930, 04/01/2022, ID: 12410784, DktEntry: 52, Page 1 of 95
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`
`
`No. 20-55930
`
`In the
`United States Court of Appeals for the Ninth Circuit
`_________________
`
`R.J. REYNOLDS TOBACCO COMPANY; AMERICAN SNUFF COMPANY;
`AND SANTA FE NATURAL TOBACCO COMPANY,
`
`Appellants,
`
`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,
`
`Appellees,
`
`______________________
`
`On Appeal from the United States District Court
`for the Central District of California
`No. 2:20-cv-4880 (Hon. Dale S. Fischer)
` _____________________
`
`Petition for Rehearing En Banc
`___________________
`
`
`Jason C. Wright
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`(213) 489-3939
`
`
`
`
`Noel J. Francisco
`Christian G. Vergonis
`Ryan J. Watson
`Andrew J. M. Bentz
`JONES DAY
`51 Louisiana Ave., N.W.
`Washington, D.C. 20001
`(202) 879-3939
`
`
`
`
`
`Counsel for Appellants
`
`

`

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`TABLE OF CONTENTS
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`
`Page
`TABLE OF AUTHORITIES ................................................................................... ii
`INTRODUCTION AND RULE 35(b)(1) STATEMENT ........................................ 1
`BACKGROUND ...................................................................................................... 4
`A. Legal background ...................................................................................... 4
`B. Los Angeles’s flavor ban, the panel’s decision,
`and Judge Nelson’s dissent ........................................................................ 5
`REASONS TO GRANT THE PETITION ............................................................... 7
`I. The panel decision conflicts with the plain text of the TCA
`and decisions of the Supreme Court and other circuits ..................................... 7
`A. The panel misconstrued the preemption clause ......................................... 7
`B. The panel misconstrued the savings clause ............................................. 13
`C. The panel created a circuit split ............................................................... 16
`II. This issue is exceptionally important .............................................................. 18
`CONCLUSION ....................................................................................................... 19
`CERTIFICATE OF COMPLIANCE
`CERTIFICATE OF SERVICE
`
`
`
`
`i
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`

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`TABLE OF AUTHORITIES
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`
`Page(s)
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`CASES
`AT&T Co. v. Cent. Off. Tel., Inc.,
`524 U.S. 214 (1998) ............................................................................................ 13
`Collins v. Yellen,
`141 S. Ct. 1761 (2021) ........................................................................................ 14
`Corley v. United States,
`556 U.S. 303 (2009) ............................................................................................ 16
`Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund,
`138 S. Ct. 1061 (2018) ........................................................................................ 11
`Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist.,
`541 U.S. 246 (2004) .....................................................................................passim
`Nat’l Meat Ass’n v. Harris,
`565 U.S. 452 (2012) .....................................................................................passim
`NATO v. Providence,
`731 F.3d 71 (1st Cir. 2013) ....................................................................... 3, 16, 17
`R.J. Reynolds Tobacco Co. v. City of Edina,
`482 F. Supp. 3d 875 (D. Minn. 2020) ............................................................. 7, 10
`Roberts v. Sea-Land Servs., Inc.,
`566 U.S. 93 (2012) .......................................................................................... 2, 13
`U.S. Smokeless Tobacco Mfg. Co. v. New York,
`708 F.3d 428 (2d Cir. 2013) ..................................................................... 3, 16, 17
`
`
`STATUTES AND LEGISLATIVE MATERIALS
`15 U.S.C. § 1334 ...................................................................................................... 14
`15 U.S.C. § 4406 ...................................................................................................... 14
`Federal Food, Drug, and Cosmetic Act
`FDCA § 301, 21 U.S.C. § 331 .............................................................................. 9
`FDCA § 801, 21 U.S.C. § 381 .............................................................................. 9
`FDCA § 902, 21 U.S.C. § 387b ............................................................................ 9
`
`ii
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`TABLE OF AUTHORITIES
`(continued)
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`Page(s)
`FDCA § 907, 21 U.S.C. § 387g ...................................................................passim
`FDCA § 911, 21 U.S.C. § 387k .......................................................................... 12
`FDCA § 916, 21 U.S.C. § 387p ...................................................................passim
`42 U.S.C. § 7543 ........................................................................................................ 8
`S.B. 793, 2019-2020 Reg. Sess. (Cal. 2020) ........................................................... 18
`L.A. Cnty. Code § 11.35.070 ..................................................................................... 5
`
`OTHER AUTHORITIES
`Utah Dep’t of Health, Administrative Rule 384-415 ............................................... 18
`
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`iii
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`
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`INTRODUCTION AND RULE 35(b)(1) STATEMENT
`This Court should grant rehearing en banc because the panel decision conflicts
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`with decisions of the United States Supreme Court and implicates questions of
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`exceptional importance. Under the federal Tobacco Control Act, states and localities
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`have broad authority to regulate the sale of tobacco products. But one thing they
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`cannot do is completely prohibit their sale because they do not meet the state or
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`locality’s preferred “tobacco product standards.” Nonetheless, a sharply divided
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`panel of this Court upheld Los Angeles County’s ban on the sale of flavored tobacco
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`products. As Judge Nelson explained in dissent, that conclusion defies the statutory
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`text and conflicts with Supreme Court precedent. Indeed, the Supreme Court has
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`“twice reversed” this Court for committing the same error as the panel here:
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`“interpreting an express preemption clause to allow states and municipalities to
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`defeat its entire purpose with a sales ban.” Dissent 34 (citing Engine Mfrs. Ass’n v.
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`S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004); Nat’l Meat Ass’n v. Harris,
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`565 U.S. 452 (2012)). Here, the third time is not the charm.
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`First, Los Angeles’s flavor ban falls in the heartland of the TCA’s preemption
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`clause. That clause preempts “any” state or local requirements that impose additional
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`or different “tobacco product standards.” A flavor ban is a paradigmatic tobacco
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`product standard. Indeed, it is one of the only tobacco product standards that
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`1
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`Congress itself adopted in the TCA. And because the County’s ban is broader than
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`the federal one, it is squarely within the Act’s preemption clause.
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`The panel, however, held that “tobacco product standards” are limited to
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`requirements dictating “how [a] product must be produced.” Op. 24. And because
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`the County’s law is “merely” a sales ban, it escapes preemption. Id. That not only
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`imposes a limitation found nowhere in the statutory text, but also conflicts with the
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`Supreme Court’s admonition that localities cannot circumvent preemption by calling
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`their laws “sales bans.” Engine Mfrs., 541 U.S. at 254. Indeed, the panel’s
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`interpretation “make[s] a mockery of the [TCA’s] preemption provision” by
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`allowing localities to avoid preemption simply by framing their product standards as
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`“banning the sale” of nonconforming products. Nat’l Meat, 565 U.S. at 465.
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`Second, the panel held in the alternative that the TCA’s savings clause saved
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`Los Angeles’s ban. That holding conflicts with the Supreme Court’s instruction that
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`statutory provisions be read in harmony, not to nullify one another. E.g., Roberts v.
`
`Sea-Land Servs., Inc., 566 U.S. 93, 100 (2012). The TCA’s three related preemption-
`
`related provisions—the preservation clause, preemption clause, and savings
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`clause—carefully distinguish between (a) requirements “relating to” the sale of
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`tobacco products and (b) requirements “prohibiting” their sale. 21 U.S.C.
`
`§ 387p(a)(1) (preservation clause). By its plain terms, the savings clause saves only
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`the first type of requirement, not the second; so it cannot save the County’s absolute
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`2
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`prohibition. § 387p(a)(2)(B). The panel’s contrary holding nullifies Congress’s
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`distinction between requirements “relating to” and “prohibiting” sales, and renders
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`the preemption clause a nullity. Any state can skirt preemption by labeling its law a
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`“sales ban,” which again contravenes Engine Manufacturers and National Meat.
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`The panel also created a circuit split. See NATO v. Providence, 731 F.3d 71
`
`(1st Cir. 2013); U.S. Smokeless Tobacco Mfg. Co. v. New York, 708 F.3d 428 (2d
`
`Cir. 2013). While the First and Second Circuits upheld local sales restrictions on
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`flavored tobacco products, their holdings were expressly conditioned on the fact that
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`the laws at issue were not total prohibitions. The panel, in contrast, upheld precisely
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`the type of absolute prohibition that the First and Second Circuits distinguished.
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`Finally, this issue is exceptionally important. The TCA reserves to the federal
`
`government the authority to regulate tobacco product standards. Those standards can
`
`govern any “property” of a tobacco product. Thus, under the panel’s interpretation,
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`every state and county can regulate any property of a tobacco product. So a county
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`can limit the amount of nicotine in cigarettes, require cigars to be a certain length,
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`or regulate the batteries in e-cigarettes. All the county has to do is ban the sale of
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`products that do not meet local standards. Jurisdictions, by the hundreds, are doing
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`just that for flavored products. And they are now moving beyond flavors—for
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`example, regulating nicotine levels. The panel opinion is a green light to more
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`regulatory bedlam, in clear defiance of the text and purpose of the statute.
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`3
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`BACKGROUND
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`A. Legal background
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`Congress enacted the Tobacco Control Act in 2009. The TCA addresses
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`flavors in tobacco products in the section “Tobacco product standards.” 21 U.S.C.
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`§ 387g. That section contains a “tobacco product standard” that prohibits
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`characterizing flavors in cigarettes other than tobacco or menthol. § 387g(a)(1)(A).
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`Congress left it to FDA to decide whether to extend that ban. E.g., § 387g(a).
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`Congress also addressed the relationship between federal authority and state
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`and local authority to regulate tobacco products in three related provisions:
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`The preservation clause generally preserves “the authority of ” states,
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`localities, the Armed Forces, federal agencies, and Indian tribes to promulgate
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`measures that are “in addition to, or more stringent than, requirements,” under the
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`TCA, including “measure[s] relating to or prohibiting the sale … of tobacco
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`products by individuals of any age.” § 387p(a)(1) (emphasis added). The
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`preservation clause, however, is expressly subject to the preemption clause, stating
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`in plain terms that it applies “[e]xcept as provided in [the preemption clause].” Id.
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`(emphasis added). Thus, if the preemption clause applies, the preservation clause
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`does not.
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`The preemption clause then prohibits states and localities from “establish[ing]
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`… any requirement” that “is different from, or in addition to,” federal requirements
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`4
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`“relating
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`
`to
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`tobacco product standards, premarket
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`review, adulteration,
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`misbranding, labeling, registration, good manufacturing standards, or modified risk
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`tobacco products.” § 387p(a)(2)(A) (emphasis added).
`
`The savings clause then provides an exception to preemption. It saves state
`
`and local “requirements relating to the sale … of, tobacco products by individuals
`
`of any age.” § 387p(a)(2)(B) (emphasis added). But the clause does not reference—
`
`and so does not save—local power to enact “requirements prohibiting the sale” of
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`those products. Compare id. (savings clause), with § 387p(a)(1) (preservation
`
`clause).
`
`B.
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`Los Angeles’s flavor ban, the panel’s decision, and Judge Nelson’s
`dissent
`1. In 2019, Los Angeles County enacted an ordinance making it illegal to “sell
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`… any flavored tobacco product.” L.A. Cnty. Code § 11.35.070(E). R.J. Reynolds
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`Tobacco Company and its affiliates sued, arguing that the ordinance was preempted.
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`As Reynolds argued, a ban on flavored tobacco products is a paradigmatic “tobacco
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`product standard.” And because the County’s ban is broader than the federal one—
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`it prohibits menthol flavors, which federal law allows—it is “different from” and “in
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`addition to” the federal standard.
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`2. A divided panel of this Court upheld the ordinance. Judge VanDyke, joined
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`by District Judge Schreier, concluded that “tobacco product standards” are limited
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`to regulations of how a “product must be produced”—a limitation found nowhere in
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`5
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`the statutory text—apparently believing this atextual reading was compelled by the
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`“preservation clause.” Op. 23-24. And since the County’s ordinance “merely” bans
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`the sale of flavored tobacco products, it was not a preempted tobacco product
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`standard. Id. The panel also held that the TCA’s savings clause saved the ordinance.
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`Op. 27-32.
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`Judge Nelson dissented. He explained that the Supreme Court’s decisions in
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`Engine Manufacturers and National Meat establish that “states can’t get around”
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`preemption “by disguising [their] regulation as a sales ban.” Dissent 36. Those cases
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`require “hold[ing] that Los Angeles’s ban is covered by the preemption clause.” Id.
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`Judge Nelson wrote that the “preservation clause does not apply to the preemption
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`clause at all” because it is qualified by the words “‘[e]xcept as provided in’ … the
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`preemption clause.” Dissent 39. Instead, the preservation clause clarifies that no
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`other section of the statute has express preemptive effect and that federal agencies
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`and Indian tribes are unaffected by the preemption clause. Dissent 34. Judge Nelson
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`also concluded that the savings clause saves only age-based requirements. Dissent
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`41.
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`6
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`
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`I.
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`REASONS TO GRANT THE PETITION
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`The panel decision conflicts with the plain text of the TCA and decisions
`of the Supreme Court and other circuits
`A. The panel misconstrued the preemption clause
`“In the last two decades, the Supreme Court has twice reversed [this Court]
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`for failing to find California regulations expressly preempted.” Dissent 34 (citing
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`Engine Mfrs., 541 U.S. 246; Nat’l Meat, 565 U.S. 452). In those cases, the Supreme
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`Court emphasized that “[w]hen Congress expressly preempts state regulation, states
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`can’t get around Congress’s prohibition by disguising that type of regulation as a
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`sales ban.” Dissent 36. The panel nonetheless concluded “that this time is different.”
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`Dissent 34. But the panel erred; its conclusion is contrary to the plain text of the
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`TCA and foreclosed by Supreme Court precedent.
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`1. The text of the TCA clearly preempts L.A. County’s flavor ban. The Act’s
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`preemption clause preempts “any” local “requirement which is different from, or in
`
`addition to,” federal “tobacco product standards.” 21 U.S.C. § 387p(a)(2)(A). A
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`flavor ban is obviously a “tobacco product standard”; indeed, one of only two
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`“tobacco product standards” that Congress expressly enacted in the text of the Act
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`was a ban on flavored cigarettes. § 387g(a)(1). The Act also describes “tobacco
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`product standards” as regulating tobacco product “properties.” § 387g(a)(4)(B)(i).
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`“[T]here can be no dispute that a provision respecting the flavor of a tobacco product
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`is a provision respecting a ‘property’ of that product.” R.J. Reynolds Tobacco Co. v.
`
`7
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`City of Edina, 482 F. Supp. 3d 875, 879 (D. Minn. 2020), appeal pending, No. 20-
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`2852 (8th Cir. argued May 12, 2021).
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`The panel did not dispute any of that. It nevertheless held that the County’s
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`ordinance (which goes beyond the federal ban) is not preempted because it is
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`“merely banning the sale of a certain type of tobacco product, not dictating how that
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`product must be produced.” Op. 24 (emphasis added). But that limitation is found
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`nowhere in the statutory text. Rather, the text makes clear that “standard” refers to
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`the characteristics of a final product—i.e., a tobacco product’s “properties,”
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`“constituents,” and “additives,” § 387g(a)(4)(B)(i)—not how the product is
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`produced. There is therefore nothing in the text that supports the limitation created
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`by the panel. See Opening Br. 30-32.
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` 2. The panel’s atextual limitation, moreover, was rejected by the Supreme
`
`Court in Engine Manufacturers. There, California prohibited the purchase of cars
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`that did not meet local emission standards. 541 U.S. at 248-49. The Clean Air Act,
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`however, expressly preempted states from adopting “standard[s] relating to the
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`control of emissions from new motor vehicles.” 42 U.S.C. § 7543(a) (emphasis
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`added). Like the panel here, California argued that a “standard” was only “a
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`‘production mandate’” applicable to manufacturers; thus, the purchase requirement
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`was not preempted. 541 U.S. at 254-55. But the Supreme Court specifically rejected
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`that attempt to “engraft onto th[e] meaning of ‘standard’ a limiting component”
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`8
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`found nowhere in the statutory text. Id. at 253. Instead, looking to the dictionary
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`definition of “standard,” the Court concluded that a “standard” applies to the final
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`product, not simply how it is made. Id. Standards “target” the product itself, which
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`means preempted “standard-enforcement efforts … can be directed to manufacturers
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`or purchasers.” Id.
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`The same is true here. A tobacco product standard applies to the final product,
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`not simply to how the product is made. See 21 U.S.C. § 387g(a)(4)(B)(i). A sales
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`ban and a manufacturing ban are just different ways of enforcing a standard. But
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`none of this changes that what is being enforced is a standard (no flavors in tobacco
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`products). Indeed, like the ordinance here, federal tobacco product standards are also
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`enforced at the point of sale. §§ 331(a), (c), 387b(5). Such enforcement mechanisms,
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`however, do not change the fact that the sales prohibitions are enforcing product
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`standards banning flavors. And manufacturers can also disregard federal standards
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`altogether if the products are exported. § 381(e)(1). That too proves “tobacco
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`product standards” are not limited to production regulations.
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`3. Even if tobacco product standards were limited to production standards, the
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`county’s sales ban would still be preempted under National Meat, 565 U.S. 452. In
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`that case, California banned slaughterhouses from selling meat from animals that
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`could not walk. Manufacturers argued that the Federal Meat Inspection Act (FMIA)
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`preempted California’s
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`law. That Act prohibited states
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`from adopting
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`“[r]equirements … with respect to premises, facilities and operations of any
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`establishment … which are in addition to, or different than those made under [the
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`FMIA].” Id. at 458. Like the panel here, California argued that its rule regulated
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`sales, not manufacturing, and thus was not preempted. Id. at 463. The Supreme Court
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`rejected the argument. “[I]f the sales ban were to avoid the FMIA’s preemption
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`clause, then any State could impose any regulation on slaughterhouses just by
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`framing it as a ban on the sale of meat produced in whatever way the State
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`disapproved. That would make a mockery of the FMIA’s preemption provision.” Id.
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`at 464.
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`The same is true here. “[E]ven if it were necessary to show a direct ban on
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`[production], [Los Angeles’s] Ordinance is in effect such a ban. There is little
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`difference between the government telling a manufacturer that it may not add an
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`ingredient that imparts a flavor to a tobacco product and the government telling a
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`manufacturer that it may not sell a tobacco product if it has added an ingredient that
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`imparts a flavor.” Edina, 482 F. Supp. 3d at 879 (citing Nat’l Meat). In that way,
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`Los Angeles’s ban does regulate how tobacco products must be produced. Id.
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`4. The panel’s attempt to distinguish the TCA from the statutes in Engine
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`Manufacturers and National Meat is unavailing. According to the panel, the TCA’s
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`“preservation clause” makes all the difference. Op. 20-24. Because that clause
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`preserves local authority to enact laws “relating to or prohibiting the sale” of tobacco
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`10
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`products, 21 U.S.C. § 387p(a)(1), the panel concluded that the preemption clause
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`must be limited to regulations “dictating how th[e] product must be produced.” Op.
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`24. Otherwise, the preservation clause would be a “nullity.” Id.
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`That gets things exactly backwards. “By its terms, the preservation clause
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`does not apply to the preemption clause at all.” Dissent 39. It is the other way around.
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`The preservation clause explicitly says it is subject to the preemption clause. 21
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`U.S.C. § 387p(a)(1) (“Except as provided in [the preemption clause] ….”). Indeed,
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`“[t]housands of statutory provisions use the phrase ‘except as provided in …’
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`followed by a cross-reference in order to indicate that one rule should prevail over
`
`another in any circumstance in which the two conflict.” Cyan, Inc. v. Beaver Cnty.
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`Emps. Ret. Fund, 138 S. Ct. 1061, 1070 (2018). That is precisely what Congress did
`
`here. Thus, the preservation clause does not remotely distinguish the TCA from the
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`statutes in Engine Manufacturers or National Meat.
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`Moreover, Reynolds’ interpretation does not nullify the preservation clause.
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`That clause serves other critical functions, which do not “affect the preemption
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`clause.” Dissent 39. First, the preservation clause also applies to federal agencies,
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`the military, and Indian Tribes. Those entities are not subject to the preemption
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`clause at all, § 387p(a)(1); the preservation clause clarifies that they are free to set
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`their own tobacco product standards. See Dissent 40.
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`Second, the preservation clause clarifies “that other sections of the TCA do
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`not have any preemptive effect.” Dissent 39-40. The preservation clause says that
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`only those categories listed in the preemption clause have express preemptive effect
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`and rebuts any suggestion that Congress occupied the field of tobacco regulation.
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`The panel’s other reason for a narrow interpretation of “tobacco product
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`standards” is equally wrong. The panel read the other areas covered by the
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`preemption clause (e.g., premarket review, labeling, and modified risk tobacco
`
`products, § 387p(a)(2)(A)) as not affecting sales. Op. 18-19. Accordingly, “tobacco
`
`product standards” also do not have anything to do with sales. But that is manifestly
`
`incorrect. See Opening Br. 31; Reply Br. 7-9. To cite just one example, a product is
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`a “modified risk tobacco product” if it “is sold or distributed for use to reduce harm
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`or the risk of tobacco-related disease associated with commercially marketed
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`tobacco products.” § 387k(b)(1) (emphasis added). Thus, a product that has been on
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`the market for years without any changes to how it is made becomes a “modified
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`risk tobacco product” if a manufacturer sells it to reduce harm. But again, even if
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`“tobacco product standards” were limited to production regulations, the County’s
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`ban is preempted under National Meat.1
`
`
`1 At times, the panel wrote that “tobacco product standards” are limited to
`manufacturing and marketing regulations. Op. 19. That interpretation is derived
`from whole cloth and contravenes the statutory text. The TCA describes tobacco
`product standards as governing “components, ingredients, additives, constituents …
`and properties of the tobacco product,” § 387g(a)(4)(B)(i), which are obviously
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`In sum, the text of the TCA confirms the conclusion that the Supreme Court’s
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`caselaw compels: the County’s ban on flavored tobacco products is a preempted
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`tobacco product standard.
`
`B.
`The panel misconstrued the savings clause
`The panel’s interpretation of the TCA’s savings clause also conflicts with
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`statutory text and Supreme Court caselaw.
`
`1. Statutory provisions must fit “into an harmonious whole.” E.g., Roberts,
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`566 U.S. at 100. So the TCA’s savings clause cannot be construed as being
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`“inconsistent with the [other] provisions of the act.” AT&T Co. v. Cent. Off. Tel.,
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`Inc., 524 U.S. 214, 227-28 (1998). But that is precisely how the panel interpreted the
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`savings clause.
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`In the TCA, Congress carefully distinguished between requirements “relating
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`to the sale” of tobacco products and requirements “prohibiting the sale” of them.
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`Congress explicitly addressed both types of requirements in the preservation clause.
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`See 21 U.S.C. § 387p(a)(1) (requirements “relating to or prohibiting the sale”
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`(emphasis added)). The savings clause, in contrast, saves only requirements “relating
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`to the sale,” but not requirements “prohibiting the sale.”
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`The panel disagrees, but its interpretation is untenable. Foremost, its
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`interpretation indisputably nullifies Congress’s careful distinction between two
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`about the product itself, not marketing.
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`types of requirements: those “relating to” sales on the one hand, and those
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`“prohibiting” sales on the other. See Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021)
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`(Congress generally “acts intentionally and purposely” when it “includes particular
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`language in one section of a statute but omits it in another”). The only way to
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`reconcile this language is to recognize that while local governments have broad
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`authority to regulate the sales process, one thing they may not do is absolutely
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`prohibit the sale of products that fail to meet their preferred product standards. That,
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`however, is precisely what the County did here.
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`The panel’s interpretation of the savings clause also renders the entire
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`preemption clause a dead letter. Congress intended to preempt not just local tobacco
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`product standards but also requirements for labeling and good manufacturing
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`standards (among others). § 387p(a)(2)(A). But, under the panel’s reading,
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`Congress’s effort was for naught. A locality can easily circumvent the preemption
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`clause and establish its own good manufacturing standards or require cigars and e-
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`cigarettes to have the locality’s mandated warning label.2 All the locality has to do
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`is ban the sale of products that do not meet local requirements. That not only
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`conflicts with the Supreme Court’s instruction that statutory provisions be read
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`2 While other laws would preempt state labeling of cigarettes and smokeless
`tobacco, 15 U.S.C. §§ 1334 & 4406(b), only the TCA expressly preempts labeling
`of other tobacco products.
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`harmoniously, see supra p. 13, but it again conflicts with the holdings of Engine
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`Manufacturers and National Meat, see supra pp. 8-11.
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`Finally, the panel’s “textual” analysis of the savings clause is incorrect. The
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`panel explained that the savings clause saved the County’s prohibition because the
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`phrase “requirements relating to”—which appears in both the preemption clause and
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`the savings clause—either does or does not include “prohibitions.” Op. 28. If it does,
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`then even if a flavor ban is preempted by the preemption clause it is saved by the
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`savings clause. And if the phrase does not include prohibitions, then a flavor ban is
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`not preempted by the preemption clause (and the savings clause is irrelevant).
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`That argument focuses on the wrong language. The preemption clause
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`explicitly preempts “any [local] requirement” different from federal tobacco product
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`standards. By saying “any” requirement, Congress made clear that the preemption
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`clause covers both requirements “relating to the sale” and those “prohibiting” the
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`sale. The savings clause, however, does not save “any” local requirement. It saves
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`only those “relating to the sale” of tobacco products. The panel’s opinion nullifies
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`this distinction.
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`Although a different part of the preemption clause uses the phrase
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`“requirements relating to,” that actually proves that “relating to” does not include
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`“prohibiting.” The TCA’s preemption provisions use “relating to” five times. Three
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`of them reference “standards”—two refer to “fire safety standards” (once in the
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`preservation clause, once in the savings clause), and the third (on which the panel
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`focused) refers to “tobacco product standards” (in the preemption clause). In each of
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`those uses, “relating to” obviously does not encompass prohibitions. Governments
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`do not prohibit fire safety standards or product standards; they set or regulate them.
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`The fourth use of “relating to”—in the preservation clause—likewise confirms that
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`“relating to” does not include prohibitions, since it distinguishes between
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`requirements “relating to or prohibiting the sale” of tobacco products. That leaves
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`the savings clause’s reference to “relating to the sale,” but omitting any reference to
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`“prohibiting the sale.” This use must mean that Congress did not intend the savings
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`clause to cover prohibitions on sales, consistent with every other use of “relating to”
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`in these provisions.
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`2. Finally, the savings clause does not apply for another, independent reason.
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`As Judge Nelson concluded, “[t]he savings clause only saves for states the authority
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`to enact age requirements.” Dissent 41. The panel’s contrary interpretation renders
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`“[to] individuals of any age” in the savings clause superfluous. Dissent 42. That
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`conflicts with numerous cases instructing that statutory provisions should not be
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`rendered meaningless. E.g., Corley v. United States, 556 U.S. 303, 314 (2009).
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`C. The panel created a circuit split
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`The panel’s holding also conflicts with First and Second Circuit decisions. See
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`U.S. Smokeless, 708 F.3d 428; NATO, 731 F.3d 71. U.S. Smokeless and NATO
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`upheld local restrictions on flavored tobacco products, but both holdings were
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`expressly conditioned on the fact that the laws at issue permitted sales in some
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`circumstances. See U.S. Smokeless, 708 F.3d at 436 (in tobacco bars); NATO, 731
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`F.3d at 74 (in smoking bars). Los Angeles’s ordinance, by contrast, does not permit
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`sales of flavored tobacco products anywhere under any circumstances.
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`That difference is key. By banning all sales, the County’s ordinance clearly
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`establishes a standard rather than regulating how, when, or where products may be
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`sold. Indeed, the First Circuit expressly “distinguishe[d]” National Meat on the
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`ground that the regulation at issue was “a regulation ‘relating to’ sales” of products
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`rather than “a blanket prohibition.” NATO, 731 F.3d at 82. The Second Circuit
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`likewise made clear that a complete sa