Whether the Tobacco Control Act expressly preempts state and local laws that prohibit the sale of flavored tobacco products

QUESTION PRESENTED Twice in the last two decades, this Court has reversed the Ninth Circuit for allowing states to use sales bans to evade express federal preemption of state standards. In Engine Manufacturers, this Court rejected the Ninth Circuit’s conclusion that California could escape preemption of state vehicle emissions “standards” by banning the purchase (but not the manufacture) of cars that did not meet state standards. Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 254 (2004). The Court held that “a standard is a standard even when not enforced through regulation.” Jd. And in National Meat, this Court rejected the Ninth Circuit’s conclusion that California could avoid preemption of state manufacturing standards by framing its law as a sales ban. Nat? Meat Ass’n v. Harris, 565 U.S. 452, 464 (2012). To hold otherwise “would make a mockery of the [Act’s] preemption provision.” Id. Nonetheless, in R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th 542 (9th Cir. 2022) (“Los Angeles”), the Ninth Circuit held that states can evade the federal Tobacco Control Act’s express preemption of state product standards by banning the sale of products that do not meet state standards. As Judge Nelson explained in dissent there, the Ninth Circuit repeated the same errors it made in Engine Manufacturers and National Meat and “allow[ed] states ... to defeat [the] entire purpose” of the Act’s preemption provisions. Id. at 561 (Nelson, J. dissenting). Los Angeles bound the Ninth Circuit in this case, which presents the same question: Whether the Tobacco Control Act expressly preempts state and local laws that prohibit the sale of flavored tobacco products.