We have previously reported on the proliferation of tobacco product flavor bans imposed by localities and subsequent legal challenges throughout the U.S. See Oregon Court Upholds Local Tobacco Product Flavor Ban; Troutman Pepper Tobacco Team Featured in Vapor Voice Post on Ninth Circuit’s Holding that L.A. County’s Flavor Ban Is Not Preempted; Philadelphia Flavor Ban Case Results in Permanent Injunction Against the City. In another example of locality action on this issue, the San Francisco City Attorney’s Office initiated a lawsuit against three California-based e-cigarette distributors (defendants), alleging violations of the city’s ban on flavored tobacco products and California law. The lawsuit was filed in the Superior Court of California, County of San Francisco. The case has been dismissed as to one of the defendants, but the litigation remains active against the other defendants.

Below is a summary of the city’s allegations against the defendants.

  • The city alleges that the defendants engaged in unlawful business acts and practices in violation of the California Business and Professions Code for the following reasons:
    • The unlawful sale of flavored tobacco products to people in San Francisco, in violation of Section 19S.2 of the San Francisco Health Code;
    • The unlawful sale of e-cigarettes to people in San Francisco, also in violation of Section 19S.2 of the San Francisco Health Code; and
    • Failure to comply with mandatory procedures in Section 22963(b) of the Business and Professions Code, a provision of the Stop Tobacco Access to Kids Enforcement Act, which includes requirements to call the purchaser after 5 p.m. prior to shipping tobacco products, and to deliver the tobacco product in a container conspicuously labeled with the words: “CONTAINS TOBACCO PRODUCTS: SIGNATURE OF PERSON 21 YEARS OF AGE OR OLDER REQUIRED FOR DELIVERY.”
  • The city alleges that the defendants violated the San Francisco Health Code for the following reasons:
    • The defendants sold flavored tobacco products and e-cigarettes to consumers in San Francisco, which is prohibited under Section 19S.2 of the San Francisco Health Code;
    • The products sold included flavored e-liquids and disposable e-cigarettes, which are classified as “flavored tobacco products” and “electronic cigarettes” under the San Francisco Health Code; and
    • The defendants’ products are new tobacco products requiring premarket review under federal law, but they do not have premarket review orders.

The city seeks injunctive relief to stop these practices and civil penalties for each violation of the Business and Professions Code Section 17200 and San Francisco Health Code Section 19S.2.

If the court rules in favor of the city, the defendants could face significant financial penalties and be compelled to cease their operations within San Francisco. This case is yet another example of enforcement of local public health regulations and the broader war that some states and localities are waging against flavored e-cigarettes and tobacco products. As the legal proceedings unfold, they should be closely monitored by public health advocates, the e-cigarette industry, and regulatory bodies alike.