In a per curiam opinion, the Eighth Circuit affirmed a district court decision upholding a Minnesota suburb’s ordinance banning the sale of flavored tobacco products. Tobacco company R.J. Reynolds sued the City of Edina after the city passed the ordinance in 2020, arguing that the federal Family Smoking Prevention and Tobacco Control Act preempted the city law. The Eighth Circuit recently rejected Reynolds’s express preemption claims—under not only one rationale, but two alternative theories—and easily disregarded the appellant’s implied preemption arguments, as explained in R.J. Reynolds Tobacco Company v. City of Edina, 60 F.4th 1170 (8th Cir. 2023).
In 2020, Edina passed Ordinance No. 2020-08, which provides “[n]o person shall sell, offer for sale, or otherwise distribute any flavored tobacco products.” Edina, Minn. Code of Ordinances § 12-257. Flavored tobacco products include “any tobacco, tobacco-related product, or tobacco-related device that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to or during consumption or use of the product or device.” Id. § 12-189. After the Ordinance passed, Reynolds sued for declaratory and injunctive relief, arguing that federal law expressly and implied preempted it.
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