UTAH VAPOR BUSINESS ASSOCIATION INC v. UTAH (2025)

ORDER DENYING IN PART [ECF NO. 12] MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plaintiffs Utah Vapor Business Association (“UVBA”) and The Smoke House (together “Plaintiffs”) seek an injunction preventing the State of Utah, Governor Spencer Cox, Attorney General Derek Brown, the Utah Department of Health and Human Services, and others (collectively “Defendants”) from enforcing Utah's Electronic Cigarette Amendments.¹ For the reasons stated below, their motion is denied in part.

BACKGROUND

Plaintiffs are specialty tobacco retailers that challenge Utah's Electronic Cigarette Amendments (the “Act”).² The Act, passed by the Utah State Legislature and signed into law in March 2024, amended several sections of the Utah Code and enacted new provisions to regulate the sale of electronic cigarettes (“e-cigarettes”). Plaintiffs seek to enjoin the Act's ban on the sale of flavored e-cigarettes and its warrantless inspection program.³

Prior to January 1, 2025, retail tobacco specialty businesses (“RTSBs”) were the only retailers who could legally sell flavored electronic cigarette products in Utah.⁴ Other tobacco retailers, such as convenience stores, may only sell unflavored electronic cigarettes that have “a taste or smell of only tobacco or menthol.”⁵ The Act expands the ban on flavored electronic cigarettes to RTSBs, prohibiting them from selling any flavored e-cigarettes. The Act makes it unlawful for any “person to give, distribute, sell, offer for sale, or furnish to any person a flavored electronic cigarette product” beginning on January 1, 2025 (the “Flavor Sales Ban”).⁶ Any individual who sells or offers flavored or unregistered electronic cigarettes is guilty of a class C misdemeanor for the first offense and a class B misdemeanor for any subsequent offense under the Act.⁷

The Flavor Sales Ban was scheduled to go into effect on January 1, 2025.⁸ Plaintiffs filed a motion for temporary restraining order, preliminary or permanent injunction, and declaratory order to halt the Act's implementation in Utah state court on December 12, 2024.⁹ Defendants removed the case to federal court on December 19, 2024.¹⁰ Plaintiffs filed their Motion for Temporary Restraining Order and Preliminary Injunction (the “Motion”) in this court on December 23, 2024.¹¹

On December 24, 2024, the parties stipulated to the entry of a temporary restraining order prohibiting Defendants from enforcing the Electronic Cigarette Amendments until the court issued a ruling on Plaintiffs’ motion for a preliminary injunction.¹² The court granted the stipulated motion on December 30, 2024.¹³ Defendants filed their oppositions on January 17, 2025,¹⁴ and Plaintiffs replied on January 29, 2025.¹⁵ The court heard oral argument on February 11, 2025.¹⁶

STANDARD

“A preliminary injunction is an extraordinary remedy, the exception rather than the rule.”¹⁷ “A preliminary injunction has the ‘limited purpose’ of ‘preserv[ing] the relative positions of the parties until a trial on the merits can be held.’ ”¹⁸ It is “never awarded as of right” and may only be granted “when monetary or other traditional legal remedies are inadequate, and ‘the right to relief is clear and unequivocal.’ ”¹⁹

“Under Rule 65 of the Federal Rules of Civil Procedure, a party seeking a preliminary injunction must show: ‘(1) the movant is substantially likely to succeed on the merits; (2) the movant will suffer irreparable injury if the injunction is denied; (3) the movant's threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.’ ”²⁰ “A party seeking a preliminary injunction must prove that all four of the equitable factors weigh in its favor.”²¹ “[A] plaintiff's failure to prove any one of the four preliminary injunction factors renders its request for injunctive relief unwarranted.”²²

DISCUSSION

Plaintiffs claim that the Flavor Sales Ban is preempted by the federal Family Smoking Prevention and Tobacco Control Act (the “TCA”).²³ Defendants disagree, arguing that the Flavor Sales Ban is a valid exercise of state power allowed under the TCA. The court considers the preemption claim for likelihood of success on the merits.

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.”²⁴ Accordingly, “federal law preempts contrary state enactments.”²⁵ “[T]he scope of a statute's pre-emptive effect is guided by the rule that ‘the purpose of Congress is the ultimate touchstone’ in every pre-emption case.”²⁶

“Preemption can be either express or implied. State laws are expressly preempted when they fall within the scope of a federal provision explicitly precluding state action.”²⁷ When a statute contains an express preemption clause, courts should “not invoke any presumption against preemption and focus instead on the plain language of the [Act's] preemption provision, ‘which necessarily contains the best evidence of Congress’ preemptive intent.’ ”²⁸ “Alternatively, state laws may be impliedly preempted either as a result of conflict or field preemption.”²⁹ Conflict preemption occurs “where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ”³⁰ Field preemption is not at issue in this case.

Enacted in 2009, the TCA marked Congress’ most substantial foray into regulating tobacco products themselves. Prior to that time, state and local governments had dominated efforts to regulate tobacco under their health and safety power.³¹ Federal law focused principally on labeling, advertising, and research.³² The FDA eventually attempted to regulate tobacco products directly, but the Supreme Court ruled it lack any authority to do so.³³ The TCA then expressly authorized the FDA to regulate tobacco products in certain ways and explicitly preserved and saved other legal authority to the states.³⁴

Relevant to that federal and state balance are the TCA's preservation, preemption, and saving clauses. Plaintiffs contend that the Preemption Clause expressly preempts the Flavor Sales Ban, that the Saving Clause does not save the Flavor Sales Ban, and that the TCA also impliedly preempts the Flavor Sales Ban. The court begins with the TCA's text, then turns to Plaintiffs’ arguments.

The Section containing the three clauses at issue is titled “Preservation of State and local authority.” It states:

(1) Preservation

Except as provided in paragraph (2)(A), nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of a Federal agency (including the Armed Forces), a State or political subdivision of a State, or the government of an Indian tribe 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 affect any State, tribal, or local taxation of tobacco products.

Paragraph 2(A) follows the Preservation Clause and provides:

2) Preemption of certain State and local requirements

(A) In general

No State or 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 subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.

This foregoing Preemption Clause is then immediately followed by an exception, the Saving Clause, which states:

(B) Exception

Subparagraph (A) 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. Information disclosed to a State under subparagraph (A) that is exempt from disclosure under section 552(b)(4) of Title 5 shall be treated as a trade secret and confidential information by the State.

Plaintiffs urge the court to find that this “federal law expressly and impliedly preempts the Flavor [Sales] Ban.”³⁵

I. Express Preemption

Plaintiffs contend that the Flavor Sales Ban is expressly preempted by the TCA. They note that “under the Tobacco Control Act, ‘tobacco product standards’ include ‘provisions respecting ․ additives [and] properties of the tobacco product.’ ”³⁶ Plaintiffs then reason that “additives” and “properties” include substances used for flavoring. They next argue that the Flavor Sales Ban “qualifies as a tobacco product standard because the ban regulates the smell and taste of flavored e-cigarette products.” As a result, Utah has “created a ‘tobacco product standard’ ” which is expressly preempted by the TCA.³⁷ Defendants argue that the clauses considered together show that sales restrictions do not amount to “tobacco product standards.”³⁸

In statutory construction, a reviewing court should not “construe words ‘in a vacuum’ ”³⁹ or “confine itself to examining a particular statutory provision in isolation.”⁴⁰ “[O]ftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context ․ [courts] must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ ”⁴¹ “ ‘Ambiguity is a creature not of definitional possibilities but of statutory context.’ ”⁴² Indeed, 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.’ ”⁴³ Accordingly, the court considers whether the Flavor Sales Ban implicates the TCA's “tobacco product standard” within the relevant section's tripartite structure and in the broader context of the overall statute.

As noted previously, the TCA's apportionment of regulatory authority is set forth in a section titled “Preservation of State and local authority.” The section's threefold structure contains what another court aptly called a “preservation sandwich”:⁴⁴ two pieces of preservation/saving with a slice of preemption in between.

In pertinent part, the Preservation Clause states that nothing other than the Preemption Clause “shall be construed to limit the authority 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 [the TCA], including a law, rule, regulation, or other measure relating to or prohibiting the sale [or] distribution ․ of tobacco products.”⁴⁵

The Preservation Clause—which, if it were alone, clearly and explicitly would preempt nothing at all—is then limited by the Preemption Clause, which in relevant part bars states from establishing “any requirement which is different from, or in addition to, any requirement under the provisions of this subchapter relating to tobacco product standards.”⁴⁶

The Saving Clause then limits the Preemption Clause, succinctly stating that the preemption involving tobacco product standards “does not apply to requirements relating to the sale, distribution, possession ․ or use of, tobacco products by individuals of any age.”⁴⁷

Considered together, the Preservation Clause makes plain that Congress intended no preemption of state and local authority outside of the areas listed in the Preemption Clause. The only one of those areas arguably implicated here are “tobacco product standards.” And the Saving Clause then either clarifies or limits any preemption based on “tobacco product standards” if the laws in question are related to sales or distribution of tobacco.

“Tobacco product standards” are not expressly defined in this subsection or anywhere else in the TCA. However, there is a “tobacco product standards” subsection that sets forth how, when, and under what circumstances the Secretary may adopt tobacco product standards. The content of these standards appears overwhelmingly directed to the manufacturing process: “the construction, components, ingredients, additives, constituents, including smoke constituents, and properties of the tobacco product.”⁴⁸ Testing and measurement of product characteristics also are addressed.⁴⁹ Partly as a result of this focus, four circuit courts each have concluded that state or local sales bans or restrictions were not intended to be “tobacco product standards” and hence could not be preempted by the TCA.⁵⁰

However, the textual argument for a sales ban being a “tobacco product standard” is not without support. The “tobacco product standards” subsection references “sale and distribution” and, under a “special rule for cigarettes,” states that “a cigarette or any of its component parts ․ shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol).” One district court found this persuasive, though on appeal the Eighth Circuit did not.⁵¹

Of course, the court must consider not just the words but the overall context as well, including the words’ “ ‘place in the overall statutory scheme.’ ”⁵² Doing so makes it appear quite unlikely that Congress intended state or local sales bans to be “tobacco product standards.” Nearly all of the context surrounding “tobacco product standards” involves manufacturing and other non-sales activities, including the surrounding language from the Preemption Clause itself: “premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.” None of this evokes retail sales. The Flavor Sales Ban does not attempt to tell a manufacturer how to make their products or set any presale requirements for tobacco products. Rather, it entirely bans the sale of flavored electronic cigarette products regardless of how the products were created or any other standard.

Similarly, when considered contextually, the preservation—preemption—exception structure seems an unlikely vehicle for preemption of a state and local retail sales ban. It makes little sense for the TCA to emphasize a general state and local right to prohibit tobacco product sales (the Preservation Clause), then indirectly prohibit a state or local tobacco sales ban without using words that would clearly so indicate (the Preemption Clause), followed immediately by stating that there is no preemption for state and local laws involving sales and distribution (the Savings Clause). In short, the structural context of the phrase in question does not suggest Congress likely intended state and local retail sales laws to be viewed as “tobacco products standards.”

Neither the Supreme Court nor the Tenth Circuit have addressed this issue, but as noted briefly previously, the circuit courts that have considered it have all reached the same or similar conclusions, though their reasoning and the underlying facts of each have varied somewhat. In U.S. Smokeless Tobacco Manufacturing Company v. City of New York,⁵³ the Second Circuit evaluated the city's prohibition on the sale of “any flavored tobacco product except in a tobacco bar.”⁵⁴ Tobacco manufacturers challenged the ban, arguing that Congress did not intend to make it impossible to purchase tobacco products that comply with federal standards.⁵⁵ The court disagreed, finding that the Preservation Clause “expressly preserves localities’ traditional power to adopt ‘any measure relating to or prohibiting the sale’ of tobacco products.”⁵⁶

The court further reasoned that the TCA exempts local laws if they establish a sales requirement, stating it “distinguishes between manufacturing and the retail sale of finished products; it reserves regulation at the manufacturing stage exclusively to the federal government, but allows states and localities to continue to regulate sales and other consumer-related aspects of the industry in the absence of conflicting federal regulation.”⁵⁷ Ultimately, the Second Circuit upheld the city's flavored tobacco ban as a valid “exercise of local police power that Congress specifically allowed in enacting the [TCA], and thus it is not preempted.”⁵⁸

Similarly, in National Association of Tobacco Outlets, Inc. v. City of Providence, Rhode Island, the First Circuit upheld a city ordinance restricting retailers from selling non-cigarette-flavored tobacco products.⁵⁹ The court found that the TCA's Preemption Clause “was meant to prohibit state regulation narrowly” and rejected the tobacco retailers’ argument that the local ban on flavored tobacco products imposed a tobacco product standard, finding that the prohibition only related to sales, which the locality could regulate under the TCA.⁶⁰

The Ninth Circuit also addressed a local sales prohibition in R.J. Reynolds Tobacco Company v. County of Los Angeles.⁶¹ There, the county enacted a ban broader than Utah's Electronic Cigarette Amendments, forbidding tobacco retailers from selling “any flavored tobacco product ․ including electronic smoking devices.”⁶² Tobacco manufacturers challenged the sales ban, arguing that the TCA expressly (and impliedly) preempted the ordinance.⁶³ The district court denied the manufacturers’ motion for a preliminary injunction, finding they were not likely to succeed on the merits, and subsequently granted the county's motion to dismiss.⁶⁴ The Ninth Circuit affirmed, stating that:

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 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 regulation such as the County's sales ban challenged in this case.65

Most recently, the Eighth Circuit followed the approach taken by the First and Second Circuits that the Preservation Clause allowed a sales ban without the need for the Savings Clause.⁶⁶ The court reasoned that the ban was “simply a ban on sales, not a tobacco product standard” as it “does not tell tobacco companies how to manufacture tobacco or what additives they can include in tobacco.”⁶⁷ Ultimately, the court rejected plaintiffs’ preemption claims, reasoning that “[t]he TCA allows state prohibitions, even ‘blanket’ prohibitions, on the sale of flavored tobacco products.”⁶⁸

Against this weight of authority, Plaintiffs argue that “FDA's use of its rulemaking authority”—specifically proposals addressing flavored tobacco products—means “that FDA understands that it has been tasked by the Tobacco Control Act with exclusive authority to regulate the use of tobacco flavors.”⁶⁹ This argument does not change the analysis. None of the proposed rules have been adopted. More importantly, there is nothing about the proposed rules that requires the conclusion that the FDA believes it has “exclusive” authority precluding state and local sales bans.⁷⁰ And, of course, the interpretative question is not what FDA believes, but what Congress intended.

In sum, both a contextual reading of the TCA's text and the weight of authority from those circuits that have considered the question suggest Plaintiffs’ Preemption Clause argument is unlikely to succeed. But even if it were, the specific effect of the Saving Clause would need to be addressed.

As noted earlier, the Saving Clause limits the Preemption Clause by expressly saving “requirements relating to the sale [or] distribution ․ of [ ] tobacco products.”⁷¹ Plaintiffs argue that the Saving Clause does not save the Flavor Sales Ban because the word “requirements” should be read to include only limited “time, place, and manner” sales restrictions, not an outright ban on sales.⁷²

Plaintiffs offer two reasons, one based on the text and another based on case law. First, Plaintiffs note that the TCA uses the phrase “relating to or prohibiting” sales in the Preservation Clause, but only uses the phrase “relating to the sale” in the Saving Clause. In Plaintiffs’ view, the difference in phrasing means Congress did not intend for the Saving Clause to save a sales ban.⁷³

Plaintiffs’ proposed reading runs afoul of the interaction between the Preservation, Preemption, and Saving Clauses. Only the Preservation Clause, which preserves power to the state and local governments, uses the phrase “relating to or prohibiting” sales, while the Preemption and Saving Clauses both use only “relating to the sale.” So, if “prohibiting” is meant to be broader than “relating,” Plaintiffs’ preferred reading itself undermines their Preemption Clause argument because that clause only uses the word “relating.” As another court explained:

The preservation clause explicitly protects the authority of state and local governments to prohibit the sale of tobacco products “[e]xcept as provided in” the preemption clause. The preemption clause then carves out of the preservation clause—and thus preempts—certain “requirements” enacted by state and local governments. If, as plaintiffs argue, a prohibition is not a “requirement,” then the preemption clause leaves untouched the preservation clause's protection of the authority of state and local governments to prohibit the sale of tobacco products. In other words, if the [local law] is a prohibition—and a prohibition is not a “requirement”—then the [local law] is not preempted under the preemption clause, and it does not matter what the saving clause says.74

In short, Plaintiffs’ textual argument supports the view that the Preemption Clause, which also lacks the word “prohibiting,” is simply not triggered at all. Because a sales “prohibition” is not preempted, there is nothing to save or except. Put differently, “as the Preemption Clause is itself silent regarding sales prohibitions, it seems far more likely that prohibitions are preserved and never preempted, and therefore need never be saved.”⁷⁵ As a result, Plaintiffs’ “prohibition” versus “restriction” argument helps them not at all.⁷⁶

Second, Plaintiffs argue that the Supreme Court has rejected broad readings of saving clauses that “ ‘would upset the careful regulatory scheme established by federal law.’ ”⁷⁷ According to Plaintiffs, applying the Saving Clause to save the Flavor Sales Ban would result in a “patchwork of conflicting standards that would vitiate Congress’ intent that the FDA ‘set national standards controlling the manufacture of tobacco products and the ․ amount of ingredients used in such products.’ ”⁷⁸

Giving the Saving Clause its plain meaning—“requirements relating to the sale ․ of [ ] tobacco products” are not preempted ⁷⁹ —supports, rather than undermines, the “careful regulatory scheme” established by the TCA. Moreover, the two Supreme Court cases on which Plaintiffs rely are not interpreting the TCA and do not prohibit the conclusion that the TCA's unique preservation/preemption/saving provision allows for Utah's Flavor Sales Ban.

In Engine Manufacturers Association v. South Coast Air Quality Management District, the court considered a rule prohibiting the purchase of vehicles that did not comply with certain emission requirements.⁸⁰ The challenged rules had “detailed prescriptions” on the types of vehicles that could be purchased or leased by fleet operators, including requirements that fleet operators purchase alternative fuel vehicles.⁸¹ Fleet operators argued that the rule was preempted by the federal Clean Air Act (CAA), “which prohibits the adoption or attempted enforcement of any state or local ‘standard relating to the control of emissions from new motor vehicles or new motor vehicle engines.’ ”⁸² The government respondents argued that the fleet rules were not standards, as the rules dealt only with vehicle purchases.⁸³ The court rejected this argument, reasoning that the meaning of “standard” as used throughout the CAA included purchasing requirements.⁸⁴

Plaintiffs rely on the court's statement that “if one State or political subdivision may enact such rules, then so may any other; and the end result would undo Congress's carefully calibrated regulatory scheme” to argue that Utah's Act violates the TCA.⁸⁵ But that statement pertains to the CAA's regulatory scheme, not the TCA's. The CAA does not have clear language preserving state and local authority over emissions regulation. Unlike the CAA, the text of the TCA plainly demonstrates Congress’ intent for states to continue to have an active role in regulating tobacco, especially and specifically when it comes to sales. Therefore, unlike in Engine Manufacturers, the Act does not upset the federal regulatory scheme.

Next, in National Meat Association v. Harris the Supreme Court found that a California law regulating slaughterhouses and banning the sale of certain animals was preempted by the Federal Meat Inspection Act (“FMIA”).⁸⁶ The FMIA's express preemption provision stated that requirements “with respect to premises, facilities and operations of any establishment ․ which are in addition to, or different than those made under this [Act] may not be imposed by any State.”⁸⁷ The court found that “[t]he FMIA's preemption clause sweeps widely” and prevented the California law from imposing additional requirements concerning slaughterhouse operations.⁸⁸

Plaintiffs emphasize the decision's reasoning that “if the sales ban were to avoid the FMIA's preemption clause, then any State could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved. That would make a mockery of the FMIA's preemption provision.”⁸⁹ But the FMIA's preemption provision lacks the TCA's Preservation and Saving Clauses. Unlike the FMIA, the TCA expressly preserves states’ traditional power to regulate tobacco product sales. In other words, Congress’ preemptive intent was different for slaughterhouse regulation than for tobacco regulation. The TCA's Preemption Clause does not require states to wait for federal sales regulations of tobacco products; instead, the statute specifically preserves and saves states’ role regarding tobacco sales.

In short, “neither National Meat nor Engine Manufacturers considered anything like the preservation sandwich included in the TCA.”⁹⁰ Every court that has compared these cases with the TCA has concluded that neither case requires a contrary result.⁹¹ The CAA and FMIA are structured very differently from the TCA and do not inform the latter's analysis. Accordingly, Plaintiffs have not shown that they are likely to succeed on their express preemption claim.

Finally, Plaintiffs also reject the notion that the Preservation Clause “left it to states to enact wholesale bans on sales of tobacco products without any limitations.”⁹² Instead, they argue that the Preservation Clause “does nothing more than preserve state and localities’ traditional power to regulate the manner and means of tobacco products sales.”⁹³ But states’ “traditional” power to regulate tobacco products includes the power to prohibit sales.⁹⁴ And the TCA does not, in any event, use the word “traditional” to describe the state power it preserves and saves—instead, it expressly provides that state and local authority relating to “sales” is preserved and saved.

For all of the foregoing reasons, Plaintiffs have not shown that they are substantially likely to prevail on their express preemption argument.

II. Conflict Preemption

Conflict preemption is a form of implied preemption that occurs when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”⁹⁵ Plaintiffs argue that Utah's Flavor Sales Ban is in conflict with the TCA and hence impliedly preempted, for three reasons. First, “Congress adopted the Tobacco Control Act ‘to authorize [the FDA] to set national standards controlling the manufacture of tobacco products and the ․ amount of ingredients used in such products.’ ”⁹⁶ That is correct, but Utah's Act does not tell manufacturers how to make their tobacco products, nor does it instruct them on the amount of ingredients used in manufacturing. Instead, it tells businesses that they may not sell certain kinds of tobacco products in Utah. As noted earlier, Congress made it sufficiently plain that the FDA would set manufacturing and certain other standards (the Preemption Clause) but states would continue to have the power to restrict sales, among other things (the Preservation Clause and Saving Clause).

Second, “the Flavor [Sales] Ban would undermine Congress’ and FDA's judgment that certain flavored tobacco products should remain on the market.”⁹⁷ The statutory purpose cited by Plaintiffs deals with tobacco products generally, not flavored tobacco products.⁹⁸ And the section contains no language indicating it is intended to address state and local authority, as opposed to the FDA's authority. Also, as addressed earlier, FDA's prior rulemaking efforts—whether completed, in process, or abandoned—simply do not make clear what Congress intended. Agencies cannot speak for Congress. To find a relevant example, one need look no further than FDA's earlier attempts to exercise authority involving tobacco that the Supreme Court found Congress had not then granted.⁹⁹

Finally, Plaintiffs argue that if “every state and locality in the nation were permitted to proceed with their own versions of bans on favored e-cigarettes, the result would be a regulatory hodgepodge.”¹⁰⁰ To the extent this is meant to suggest that the TCA was focused on national uniformity across all aspects of the tobacco regulatory field, the statute itself makes it plain enough that was not Congress’ intent. Indeed, it is difficult to see how a law with the TCA's Preservation Clause, Preemption Clause, and a Saving Clause would result in anything other than a patchwork.¹⁰¹ At its heart, Plaintiffs’ “hodgepodge” claim is a policy argument about the best way to regulate tobacco products—that national uniformity is good and state and local variations are bad. These policy considerations may be addressed by Congress but cannot be addressed by this court. So too for Plaintiffs’ expansive arguments against the general need for and wisdom of the Act.¹⁰² Those public policy considerations are for the Legislature.

In sum, Plaintiffs have not met their burden to establish that they are substantially likely to succeed on the merits of their preemption claims, either express or implied. Without this showing, Plaintiffs cannot obtain the “extraordinary remedy” of a preliminary injunction against the Flavor Sales Ban. Accordingly, the court denies in part Plaintiffs’ motion for a preliminary injunction without addressing the remaining preliminary injunction factors.¹⁰³

ORDER

Plaintiff's motion for preliminary injunction regarding the Flavor Sales Ban is DENIED.¹⁰⁴

FOOTNOTES

1.   Motion for Temporary Restraining Order and Preliminary Injunction (“Mot.”), ECF No. 12, filed Dec. 23, 2024. Plaintiffs have dismissed Salt Lake County Health Department and Dorothy Adams as defendants since filing their motion. See ECF No. 40, Notice from the Court, filed Jan. 30, 2025.

2.   Electronic Cigarette Amendments, 2024 Utah Laws Ch. 470 (S.B. 61).

3.   Mot. 2. The court will address the warrantless search provisions in a separate opinion following additional briefing from the parties. Plaintiffs also initially asserted an Administrative Rulemaking Act violation, which they later withdrew. See Mot. 46 and Reply 10, n.16.

4.   Utah Code Ann. § 76-10-113 (1).

5.   Utah Code Ann. § 76-10-101 (7)(c).

6.   Utah Code Ann. § 76-10-113 (2).

7.   Utah Code Ann. § 76-10-113 (4).

8.   Utah Code Ann. § 59-14-810 (7)(a).

9.   Complaint, ECF No. 1-2, filed Dec. 19, 2024.

10.   Notice of Removal, ECF No. 1, filed Dec. 19, 2024.

11.   Mot.

12.   Stipulated Motion for Entry of Order Granting Temporary Restraining Order, ECF No. 14, filed Dec. 24, 2024.

13.   Order Granting Stipulated Motion for Entry of Order Granting Temporary Restraining Order, ECF No. 20, filed Dec. 30, 2024.

14.   State Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (“Opp.”), ECF No. 32, filed Jan. 17, 2021.

15.   Reply in Support of Motion for Temporary Restraining Order and Preliminary Injunction (“Reply”), ECF No. 38, filed Jan. 29, 2025.

16.   Minute Entry, ECF No. 43, filed Feb. 11, 2025.

17.   Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019) (quoting Free the Nipple-Fort Collins v. City of Fort Collins, Colorado, 916 F.3d 792, 797 (10th Cir. 2019)).

18.   DTC Energy Grp., Inc. v. Hirschfeld, 912 F.3d 1263, 1269 (10th Cir. 2018) (quoting Schrier v. Univ. Of Co., 427 F.3d 1253, 1258 (10th Cir. 2005)).

19.   Id. (quoting First W. Cap. Mgmt. Co. v. Malamed, 874 F.3d 1136, 1141 (10th Cir. 2017)) (also quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)).

20.   First W. Cap. Mgmt. Co., 874 F.3d at 1141 (quoting Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016)).

21.   Sierra Club, Inc. v. Bostick, 539 F. App'x 885, 888 (10th Cir. 2013) (unpublished) (emphasis in original).

22.   Vill. of Logan v. U.S. Dep't of Interior, 577 F. App'x 760, 766 (10th Cir. 2014) (unpublished) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 23–24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (consideration of irreparable injury and public interest “factors alone requires denial of the requested injunctive relief”)); see also Schrier v. Univ. of Co., 427 F.3d 1253, 1262 n.2 (10th Cir. 2005) (affirming district court's denial of preliminary injunction based on only irreparable injury and likelihood of success prongs).

23.   21 U.S.C. § 387 et seq.

24.   U.S. Const. art. VI, cl. 2.

25.   Chamber of Com. of U.S. v. Edmondson, 594 F.3d 742, 765 (10th Cir. 2010) (citing M'Culloch v. Maryland, 17 U.S. 316, 405–06, 4 Wheat. 316, 4 L.Ed. 579 (1819)).

26.   Altria Grp., Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)).

27.   Edmondson, 594 F.3d at 765 (citing Hillsborough Cnty., Fla. v. Automated Med. Lab'ys, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)) (internal citations omitted).

28.   Thornton v. Tyson Foods, Inc., 28 F.4th 1016, 1023 (10th Cir. 2022) (quoting Emerson v. Kansas City S. Ry. Co., 503 F.3d 1126, 1129 (10th Cir. 2007)) (cleaned up).

29.   Edmondson, 594 F.3d at 765 (citations omitted).

30.   Arizona v. United States, 567 U.S. 387, 399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).

31.   Altria Grp. Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (noting “historic police powers of the States”) (cleaned up); Austin v. State of Tennessee, 179 U.S. 343, 348–49, 21 S.Ct. 132, 45 L.Ed. 224 (1900) (it is “within the province of the legislature to say how far [cigarettes] may be sold, or to prohibit their sale entirely” pursuant to the state's police powers with regard to “the preservation of public health or safety.”); see also Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1190–91 (11th Cir. 2017) (discussing history of state regulation of tobacco products as exercise of state police powers).

32.   Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143–44, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).

33.   Id. at 126, 120 S.Ct. 1291.

34.   21 U.S.C. § 387p.

35.   Mot. 25.

36.   Id. at 26.

37.   Id. at 29.

38.   Opp. 19–21.

39.   Gundy v. United States, 588 U.S. 128, 141, 139 S.Ct. 2116, 204 L.Ed.2d 522 (2019) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)).

40.   Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).

41.   King v. Burwell, 576 U.S. 473, 474, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 133, 120 S.Ct. 1291).

42.   Brown & Williamson Tobacco Corp., 529 U.S. at 132-33, 120 S.Ct. 1291 (quoting Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994)).

43.   King v. Burwell, 576 U.S. 473, 475, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) (quoting Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 320, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014)).

44.   R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542, 555 (9th Cir. 2022).

45.   21 U.S.C.A. § 387p(a)(1).

46.   21 U.S.C.A. § 387p(a)(2)(A) (emphasis supplied).

47.   21 U.S.C.A. § 387p(a)(2)(B).

48.   21 U.S.C.A. § 387g(a)(4)(B)(i).

49.   21 U.S.C.A. § 387g(a)(4)(B)(ii)(iii)(iv).

50.   R. J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170, 1178 (8th Cir. 2023); R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542, 555 (9th Cir. 2022); U.S. Smokeless Tobacco Manufacturing Company v. City of New York 708 F.3d 428 (2d Cir. 2013); Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71 (1st Cir. 2013).

51.   Compare R. J. Reynolds Tobacco Co. v. City of Edina, 482 F. Supp.3d 875 (D. Minn. 2020) (finding “the Ordinance is a ‘requirement ․ relating to tobacco product standards’ within the meaning of the preemption clause”) with R. J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170, 1178 (8th Cir. 2023) (noting other courts have found sales bans are not “tobacco product standards” and was “similarly convinced”).

52.   Gundy v. United States, 588 U.S. 128, 141, 139 S.Ct. 2116, 204 L.Ed.2d 522 (2019) (quoting Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)).

53.   708 F.3d 428 (2d Cir. 2013).

54.   Id. at 431.

55.   Id. at 433.

56.   Id. (quoting 21 U.S.C. § 387p(a)(1)) (emphasis in original).

57.   Id. at 434.

58.   Id. at 436.

59.   Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71 (1st Cir. 2013).

60.   Id. at 83.

61.   29 F.4th 542 (9th Cir. 2022).

62.   Id. at 551.

63.   Id. at 552.

64.   Id.; see also R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 471 F. Supp. 3d 1010, 1018 (C.D. Cal. 2020) (“a flavored tobacco ban is not a regulation of tobacco product standards and is therefore not preempted ․ The Ordinance may very well have negative foreseen or unforeseen consequences ․ Such concerns should be directed to the appropriate legislative bodies”).

65.   Id. at 548.

66.   R. J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170, 1175 (8th Cir. 2023).

67.   Id. at 1175.

68.   Id.

69.   Mot. 28 (emphasis supplied).

70.   21 C.F.R. § 1162 (2022) (the proposed “Tobacco Product Standard for Menthol in Cigarettes” rule). The proposed regulations would have prohibited the manufacturing, distribution, or sale of cigarette or components that are not in compliance with the product standard.

71.   21 U.S.C. § 387p (a)(2)(B).

72.   Mot. 30.

73.   Mot. 30–31.

74.   R.J. Reynolds Tobacco Co. v. City of Edina, 482 F. Supp. 3d 875, 881 (D. Minn. 2020).

75.   U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 2011 WL 5569431, at *7 (S.D.N.Y. 2011).

76.   Accord R.J. Reynolds Tobacco Company v. County of Los Angeles, 29 F.4th 542, 558–59 (9th Cir. 2022).

77.   Mot. 31, quoting from Geier v. Am. Honda Motor Co., 529 U.S. 861, 870, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000).

78.   Mot. 32, quoting Tobacco Control Act § 3(3), PL 111-31, June 22, 2009, 123 Stat 1776.

79.   21 U.S.C. § 387p (a)(2)(B).

80.   Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 248, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004).

81.   Id. at 249, 124 S.Ct. 1756.

82.   Id. at 251, 124 S.Ct. 1756 (quoting 42 U.S.C. § 7543(a)).

83.   Id. at 253, 124 S.Ct. 1756.

84.   Id. at 254, 124 S.Ct. 1756.

85.   Mot. 33 (quoting Engine Mfrs. Ass'n, 541 U.S. 246, 255, 124 S.Ct. 1756 (2004)).

86.   565 U.S. 452, 132 S.Ct. 965, 181 L.Ed.2d 950 (2012).

87.   Id. at 458, 132 S.Ct. 965 (quoting 21 U.S.C. § 678).

88.   Id. at 459–60, 132 S.Ct. 965.

89.   Reply 15 (quoting National Meat, 565 U.S. at 464, 132 S.Ct. 965).

90.   R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542, 557 (9th Cir. 2022).

91.   See id. at 558 (“The TCA includes a fundamentally different preemption provision than either of the provisions considered by the Supreme Court in National Meat and Engine Manufacturers.”); Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71, 82 (1st Cir. 2013) (“In National Meat, the state preemption statute—in contrast to the statute in this case—did not contain a savings clause that expressly exempted regulations ‘relating to the sale’ of the product from preemption.”); U.S. Smokeless Tobacco Mfg. Co. LLC v. City of New York, 708 F.3d 428, 435 n.2 (2d Cir. 2013) (finding the City's regulation was “easily distinguishable” from the statute in National Meat because the “ordinance at issue here does not concern itself with the mode of manufacturing, or with the ingredients that may be included in tobacco products.”)

92.   Reply 11.

93.   Reply 11–12 (emphasis supplied).

94.   Austin v. State of Tennessee, 179 U.S. 343, 348–49, 21 S.Ct. 132, 45 L.Ed. 224 (1900) (it is “within the province of the legislature to say how far [cigarettes] may be sold, or to prohibit their sale entirely” pursuant to the state's police powers with regard to “the preservation of public health or safety.”); see also Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1190–91 (11th Cir. 2017) (discussing history of state regulation of tobacco products as exercise of state police powers).

95.   Arizona v. United States, 567 U.S. 387, 399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).

96.   Mot. 34.

97.   Mot. 34–36.

98.   TCA § 3(7).

99.   Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 126, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). Plaintiffs rely on this case for its statement that “The collective premise of the [federal tobacco] statutes is that cigarettes and smokeless tobacco will continue to be sold in the United States[.]” Mot. 34, citing Brown & Williamson, 529 U.S. at 139, 120 S.Ct. 1291. Of course, Brown & Williamson was not referring to the TCA, which it preceded by nine years. And, in any event, the instant case involves neither traditional cigarettes nor smokeless tobacco—it involves only a species of vape products: those that are not tobacco or menthol flavored. Additionally, the Act obviously bans the sale of this subset of vape products in Utah, not throughout the country. The “premise” that some tobacco products will be available in the United States (and Utah, for that matter) is unaffected by the Act. The court declines the invitation to read Plaintiffs’ cited “premise” as a federal requirement that all tobacco products of every description must be available for sale everywhere in the United States.

100.   Reply 17.

101.   It seems the TCA has already led to Plaintiffs’ “patchwork” of regulation. In passing the Act, Utah apparently joins something like five other states and nearly 400 localities that have prohibited the sale of flavored tobacco products in some way. See Campaign for Tobacco Free Kids, States & Localities that have Restricted the Sale of Flavored Tobacco Products (Feb. 5, 2025), https://perma.cc/4CWQ-S2UA; see also R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542, 551 (9th Cir. 2022) (citing Campaign for Tobacco Free Kids fact sheet, which at the time stated that “at least three states and over 300 local jurisdictions across the country” had enacted a prohibition on the sale of flavored tobacco products”).

102.   See, e.g., Motion 12–22.

103.   See Springer v. Seventh Jud. Dist. Ct., No. 123CV00499MISJMR, 2023 WL 6219214, at *7 (D.N.M. 2023), appeal dismissed, No. 23-2158, 2024 WL 1406683 (10th Cir. 2024) (denying preliminary injunction based on plaintiff's failure to establish substantial likelihood of success without addressing remaining preliminary injunction factors); Bradford v. U.S. Dep't of Lab., 582 F. Supp. 3d 819, 848 (D. Colo. 2022), aff'd, 101 F.4th 707 (10th Cir. 2024) (denying preliminary injunction because plaintiffs failed to show they were likely to succeed on the merits without addressing the remaining preliminary injunction factors).

104.   ECF No. 12.

David Barlow, United States District Judge