In April, Michael Edney, the lead attorney for most of the cigar industry’s successful lawsuit against the FDA’s regulation of premium cigars, was back in a federal court on behalf of his cigar clients. This time, the venue was the U.S. Court of Appeals for the Ninth Circuit, and the matter was California’s Unflavored Tobacco List (UTL).
Despite optimism from some of the plaintiffs, the hearing was not successful.
Yesterday, the three-judge panel issued its opinion in the appeal of Rocky Patel Premium Cigars Inc. et al v. Bonta. It rejected the cigar industry’s claims and cast doubt over whether the lawsuit would succeed.
The UTL
Two laws passed by the California General Assembly—one in 2020 and the other in 2024—banned the sale of most flavored tobacco products. The latter directed the California attorney general’s office to create a list of products that the attorney general’s office certified as unflavored.
To comply with the UTL, companies needed to fill out some paperwork, pay a $300 application fee, and submit a sample of the product. If approved, the products go on the UTL, an actual list. On Dec. 31, 2025, the attorney general’s office published the first UTL, with more than 6,000 products. Currently, there are more than 7,300 products on the UTL.
About a year ago, as the industry came to grips with the upcoming UTL deadlines, member companies of the Cigar Rights of America began discussing whether they would file a lawsuit to try to stop the UTL.
The Parties
The following companies are plaintiffs:
- Arturo Fuente
- Ashton
- La Flor Dominicana
- My Father
- Oliva
- Padrón
- Rocky Patel
In addition, Cigar Rights of America (CRA) and the Premium Cigar Association (PCA) are plaintiffs.
They have sued Rob Bonta, California’s attorney general, in his official capacity.
The Lawsuits
In October, days before a UTL deadline, this particular lawsuit was filed in the U.S. District Court for the Central District of California, i.e. federal court. As part of the lawsuit, the plaintiffs asked for an emergency temporary restraining order. In response, the state argued that the 11th Amendment prevented the plaintiffs from asking a federal court to rule on violations of the California Administrative Procedures Act. Judge Mónica Ramírez Almadani agreed and rejected that request. In response, the plaintiffs filed a near-identical lawsuit in state court and modified their federal lawsuit.
Since then, the industry has continued to have its requests for injunctions and temporary restraining orders denied by judges in both court systems.
In late December, Ramírez Almadani heard oral arguments regarding a preliminary injunction that the plaintiffs requested. Their request was to prevent California from applying the UTL laws to “premium cigars” before the UTL took effect. Notably, California law defines a “premium cigar” in a specific way that the ones the plaintiffs were familiar with due to their lawsuit against the FDA. Coincidentally, a day after the hearing for the appeal took place, a federal court in Washington, D.C. issued a final ruling in that other lawsuit, one that upheld the definition the plaintiffs have tried to use in the UTL case.
Had the plaintiffs been successful in December, a preliminary injunction would have allowed retailers in California to legally continue to sell handmade and unflavored cigars that weren’t on the UTL. However, Ramírez Almadani denied their request, and on Jan. 1, the UTL took effect.
The Appeal
A preliminary injunction is a request to preserve the status quo before a trial takes place. The party that requests the preliminary injunction is tasked with convincing a judge, or panel of judges, that they will suffer irreparable harm and that they are likely to win at trial. If they can convince a judge that they meet the threshold for both parts, an injunction is granted before the rest of the litigation takes place.
As part of the process, it also means that the parties will get judges to give them their opinions about how a larger trial would go. In this case, the appeals panel said it does not believe the cigar industry would be successful with these arguments. It does not mean that they won’t and the plaintiffs could continue to argue these claims.
The panel included Richard Paez (a Clinton appointee), Consuelo Callahan (a George W. Bush appointee) and Patrick J. Bumatay (a Trump appointee).
Bumatay wrote the opinion, which focuses on two main arguments:
- Preemption — Whether the Family Smoking Prevention and Tobacco Control Act, a federal tobacco law, prevents California from enacting this sort of state law
- Free Speech — The plaintiffs have argued that the UTL prevents them from using flavor descriptors, like wood, pepper or chocolate, in marketing descriptions of their unflavored products
Courts throughout the country have heard challenges to recent state regulations on tobacco and, more frequently, vaping products. When these laws get challenged, one of the questions is whether a state has the authority to regulate the products. Via the Tobacco Control Act, Congress gave most of that authority, including the right to enact product approval systems, to the FDA.
However, the law does create specific exemptions where states retain tobacco control authority. One of them is regulating the sale of tobacco products. Up for debate here is whether the UTL is a regulation of the products or a regulation of the sale of the products.
The plaintiffs argued that because manufacturers are required to submit the products for approval, it’s not regulating the sale of the products, which is done by retailers. The appeals panel disagreed. Instead, it found that the UTL works to assist California’s law banning the sale of most flavored tobacco products.
“The UTLS and its application process are directly tied to California’s ban on retail sales of flavored tobacco products,” wrote Bumatay. “Premium-cigar manufacturers may (correctly) believe that their products are unflavored under federal law, but the TCA lets California ask them to prove it. The Unflavored Tobacco List and its application process help the State ensure only approved unflavored tobacco products end up on California retail shelves. The UTLS is not ‘tenuous[ly], remote[ly], or peripheral[ly]’ connected to California’s retail sales prohibition. Rather, its requirements directly ‘relat[e] to’ retail sales, which Congress left in the hands of the States.”
Regarding free speech, the panel was persuaded by two arguments from the other side. First, any cigar that would be impacted by the request for the preliminary injunction—i.e., one that meets the FDA-related definition of “premium cigar”—would inherently be unflavored. Because of this, it’s unlikely the product wouldn’t be approved under the UTL. Second, Bonta told the court that his office would not reject a cigar that does not have added flavoring because of how a manfuacturer described the tasting notes of the cigar. As such, the first amendment claims were denied.
You can read the decision here.
Overall Score
AB 3218
California
California Unflavored Tobacco List
Cigar Rights of America
Flavored Tobacco Products
Litigation
Monica Ramírez Almadani
Premium Cigar Association
Rob Bonta
Rocky Patel Premium Cigars Inc. et al v. Bonta
U.S. Court of Appeals for the Ninth Circuit
