No. 20-2852 ___________________________

R. J. Reynolds Tobacco Company; R.J. Reynolds Vapor Company; American Snuff Company, LLC; Santa Fe Natural Tobacco Company, Inc.; Cousins II, Inc., doing business as Vernon BP; Lang’s Automotive Service, Inc., doing business as Lang’s One Stop Market

Plaintiffs - Appellants

v.

City of Edina; Edina City Council; Scott Neal, in his official capacity as City Manager of the City of Edina

Defendants - Appellees

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Public Health Law Center; Action on Smoking and Health; African American Tobacco Control Leadership Council; American Cancer Society Action Network; American Heart Association; American Lung Association; American Medical Association; American Public Health Association; American Thoracic Society; Americans for Nonsmokers’ Rights; Asian Pacific Partners for Empowerment, Advocacy and Leadership; Association for Nonsmokers-Minnesota; Blue Cross and Blue Shield of Minnesota; Campaign for Tobacco-Free Kids; Center for Black Health and Equity; ChangeLab Solutions; ClearWay; Massachusetts Association of Health Boards; Minnesota Medical Association; National LGBT Cancer Network; National Native Network; Parents Against Vaping e-cigarettes; Public Health Advocacy Institute; Public Health and Tobacco Policy Center; Truth Initiative

Amici on Behalf of Appellee(s) ____________ Appeal from United States District Court for the District of Minnesota ____________

Submitted: May 12, 2021 Filed: February 27, 2023 [Published] ____________ Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges. ____________ PER CURIAM.

The City of Edina, Minnesota passed an ordinance banning the sale of flavored tobacco products. R.J. Reynolds Tobacco Company sued the City, arguing that the Ordinance is preempted by the Family Smoking Prevention and Tobacco Control Act. The district court 1 granted the City’s motion to dismiss, and Reynolds appealed. We conclude the Ordinance is not preempted and affirm the district court.

I.

In response to growing concerns about adolescent tobacco use, Congress passed the TCA in June 2009. Pub. L. No. 111-31, § 2(6), 123 Stat. 1776, 1777 (2009). One of the primary goals was to authorize “the Food and Drug Administration to set national standards controlling the manufacture of tobacco products.” Id. § 3(3). To achieve national uniformity while still respecting States’ police power, the Act has three sections relating to preemption: the Preservation Clause, the Preemption Clause, and the Savings Clause. Those three provisions are at the heart of this litigation.

1 The Honorable Patrick Schiltz, now Chief Judge, United States District Court for the District of Minnesota. -2- First is the Preservation Clause: “[e]xcept as provided in [the Preemption Clause], nothing in [the TCA] . . . shall be construed to limit the authority of . . . a State or political subdivision of a State” to enact any law relating to tobacco “that is in addition to, or more stringent than” the requirements of the TCA. 21 U.S.C. § 387p(a)(1). Essentially, the Preservation Clause tells us that there is no “field preemption” for the TCA—states and cities are free to go above and beyond the requirements of the TCA to curb tobacco use.

The Preemption Clause limits that general principle. It says that states