21 U.S.C. § 387p
Preservation of State and local authority
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.
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.
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.
No provision of this subchapter relating to a tobacco product shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State.
Notes of Decisions
Cited in 30
cases (11 in the last 5 years), 2010–2026 · leading case: R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022).
R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022). “4 Because this is a case about preemption, it is easy to refer to 21 U.S.C. § 387p of the TCA as a “preemption provision.”
Colgate v. Juul Labs, Inc., 345 F. Supp. 3d 1178 (N.D. Cal. 2018). “JUUL contends that under the TCA's preemption provision, 21 U.S.C. § 387p(2)(A), the labelling requirements for ENDS are prescribed solely by 81 Fed.”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329 (S.D.N.Y. 2010). “See 21 U.S.C. § 387p(a)(1) (preservation clause), even though the FDA could regulate the “sale” of such products at some future date.”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013). “Such a broad reading of the preemption clause, which collapses the distinction between sales and product regulations, would render superfluous § 916’s three-part structure, and in particular would vitiate the preservation clause’s instruction that the Act not be “construed to…”
Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71 (1st Cir. 2013). “§ 1334 (b); that the Flavor Ordinance was preempted by the Family Smoking Prevention and Tobacco Control Act (“FSPTCA”), 21 U.S.C. § 387p(a)(2)(A); and that, under state law, the ordinances were also preempted and violated the licensing provisions of the Rhode Island…”
R.J. Reynolds Tobacco Co. v. Phil J. Marotta, etc., 214 So. 3d 590 (Fla. 2017). “§ 4406 governs only smokeless tobacco, and 21 U.S.C. § 387p was enacted in 2009 and does not apply to cases pending before its effective date), we conclude that the inclusion of these clauses is indicative of Congress’s general intent to preserve state law tort remedies against…”
Berger v. Philip Morris USA, Inc., 185 F. Supp. 3d 1324 (M.D. Fla. 2016). “21 U.S.C. § 387p (emphases added). 14 Congress thus made plain what one would otherwise presume: that the states retained broad authority to regulate cigarettes, and specifically, to ban their sale, distribution, possession, or use outright.”
R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170 (8th Cir. 2023). “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.”
Independents Gas & Serv. Stations Ass'n v. City of Chicago, 112 F. Supp. 3d 749 (N.D. Ill. 2015). “1 They allege that the city’s flavored tobacco ordinance is preempted by the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), 21 U.S.C. § 387p (count 1), unconstitutionally vague 1 under the Fourteenth Amendment of the U.”
Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512 (W.D. Ky. 2010). “” 21 U.S.C. § 387p. As this language does not constitute a delegation of Legislative power, unconstitutional or otherwise, Plaintiffs’ argument must be rejected.”
Evans v. Lorillard Tobacco Co., 465 Mass. 411 (Mass. 2013). “1776 , which grants sole authority over regulation of the tobacco industry to the FDA but, as codified at 21 U.S.C. § 387p(b) (Supp. IV 2010), expressly states that “[n]o provision of this chapter relating to a tobacco product shall be construed to modify or otherwise affect any…”
Major v. R.J. Reynolds Tobacco Co., 222 Cal. Rptr. 3d 563 (Cal. Ct. App. 5th 2017). “" (21 U.S.C. § 387p(a)(1).) Considered together, these statutes state that while Congress's intent is that the FDA not ban cigarettes entirely, Congress has made no such determination with respect to the states.”
— 21 U.S.C. § 387p(2)(A) — 1 case
Colgate v. Juul Labs, Inc., 345 F. Supp. 3d 1178 (N.D. Cal. 2018). “JUUL contends that under the TCA's preemption provision, 21 U.S.C. § 387p(2)(A), the labelling requirements for ENDS are prescribed solely by 81 Fed.”
— 21 U.S.C. § 387p(2)(B) — 1 case
Colgate v. Juul Labs, Inc., 345 F. Supp. 3d 1178 (N.D. Cal. 2018). “JUUL contends that under the TCA's preemption provision, 21 U.S.C. § 387p(2)(A), the labelling requirements for ENDS are prescribed solely by 81 Fed.”
— 21 U.S.C. § 387p(a) — 3 cases
GoodCat, LLC v. Cook, 202 F. Supp. 3d 896 (S.D. Ind. 2016).
Neighborhood Mkt. Ass'n, Inc. v. Cnty. of San Diego (S.D. Cal. 2021).
R.J. Reynolds Tobacco Co. v. Cnty. of San Diego (S.D. Cal. 2021).
— 21 U.S.C. § 387p(a)(1) — 20 cases
R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022). “4 Because this is a case about preemption, it is easy to refer to 21 U.S.C. § 387p of the TCA as a “preemption provision.”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329 (S.D.N.Y. 2010). “See 21 U.S.C. § 387p(a)(1) (preservation clause), even though the FDA could regulate the “sale” of such products at some future date.”
R.J. Reynolds Tobacco Co. v. Phil J. Marotta, etc., 214 So. 3d 590 (Fla. 2017). “§ 4406 governs only smokeless tobacco, and 21 U.S.C. § 387p was enacted in 2009 and does not apply to cases pending before its effective date), we conclude that the inclusion of these clauses is indicative of Congress’s general intent to preserve state law tort remedies against…”
Major v. R.J. Reynolds Tobacco Co., 222 Cal. Rptr. 3d 563 (Cal. Ct. App. 5th 2017). “" (21 U.S.C. § 387p(a)(1).) Considered together, these statutes state that while Congress's intent is that the FDA not ban cigarettes entirely, Congress has made no such determination with respect to the states.”
R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170 (8th Cir. 2023). “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.”
— 21 U.S.C. § 387p(a)(2) — 1 case
Berger v. Philip Morris USA, Inc., 185 F. Supp. 3d 1324 (M.D. Fla. 2016). “21 U.S.C. § 387p (emphases added). 14 Congress thus made plain what one would otherwise presume: that the states retained broad authority to regulate cigarettes, and specifically, to ban their sale, distribution, possession, or use outright.”
— 21 U.S.C. § 387p(a)(2)(A) — 14 cases
R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022). “4 Because this is a case about preemption, it is easy to refer to 21 U.S.C. § 387p of the TCA as a “preemption provision.”
Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71 (1st Cir. 2013). “§ 1334 (b); that the Flavor Ordinance was preempted by the Family Smoking Prevention and Tobacco Control Act (“FSPTCA”), 21 U.S.C. § 387p(a)(2)(A); and that, under state law, the ordinances were also preempted and violated the licensing provisions of the Rhode Island…”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329 (S.D.N.Y. 2010). “See 21 U.S.C. § 387p(a)(1) (preservation clause), even though the FDA could regulate the “sale” of such products at some future date.”
Colgate v. Juul Labs, Inc., 345 F. Supp. 3d 1178 (N.D. Cal. 2018). “JUUL contends that under the TCA's preemption provision, 21 U.S.C. § 387p(2)(A), the labelling requirements for ENDS are prescribed solely by 81 Fed.”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013). “Such a broad reading of the preemption clause, which collapses the distinction between sales and product regulations, would render superfluous § 916’s three-part structure, and in particular would vitiate the preservation clause’s instruction that the Act not be “construed to…”
— 21 U.S.C. § 387p(a)(2)(B) — 11 cases
R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022). “4 Because this is a case about preemption, it is easy to refer to 21 U.S.C. § 387p of the TCA as a “preemption provision.”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329 (S.D.N.Y. 2010). “See 21 U.S.C. § 387p(a)(1) (preservation clause), even though the FDA could regulate the “sale” of such products at some future date.”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013). “Such a broad reading of the preemption clause, which collapses the distinction between sales and product regulations, would render superfluous § 916’s three-part structure, and in particular would vitiate the preservation clause’s instruction that the Act not be “construed to…”
R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170 (8th Cir. 2023). “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.”
Berger v. Philip Morris USA, Inc., 185 F. Supp. 3d 1324 (M.D. Fla. 2016). “21 U.S.C. § 387p (emphases added). 14 Congress thus made plain what one would otherwise presume: that the states retained broad authority to regulate cigarettes, and specifically, to ban their sale, distribution, possession, or use outright.”
— 21 U.S.C. § 387p(a)(l) — 8 cases
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013). “Such a broad reading of the preemption clause, which collapses the distinction between sales and product regulations, would render superfluous § 916’s three-part structure, and in particular would vitiate the preservation clause’s instruction that the Act not be “construed to…”
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329 (S.D.N.Y. 2010). “See 21 U.S.C. § 387p(a)(1) (preservation clause), even though the FDA could regulate the “sale” of such products at some future date.”
Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71 (1st Cir. 2013). “§ 1334 (b); that the Flavor Ordinance was preempted by the Family Smoking Prevention and Tobacco Control Act (“FSPTCA”), 21 U.S.C. § 387p(a)(2)(A); and that, under state law, the ordinances were also preempted and violated the licensing provisions of the Rhode Island…”
Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512 (W.D. Ky. 2010). “” 21 U.S.C. § 387p. As this language does not constitute a delegation of Legislative power, unconstitutional or otherwise, Plaintiffs’ argument must be rejected.”
Philip Morris USA, Inc. v. Lourie, 198 So. 3d 975 (Fla. 2d DCA 2016).
— 21 U.S.C. § 387p(b) — 4 cases
Evans v. Lorillard Tobacco Co., 465 Mass. 411 (Mass. 2013). “1776 , which grants sole authority over regulation of the tobacco industry to the FDA but, as codified at 21 U.S.C. § 387p(b) (Supp. IV 2010), expressly states that “[n]o provision of this chapter relating to a tobacco product shall be construed to modify or otherwise affect any…”
Philip Morris USA, Inc. v. Lourie, 198 So. 3d 975 (Fla. 2d DCA 2016).
Berger v. Philip Morris USA, Inc., 185 F. Supp. 3d 1324 (M.D. Fla. 2016). “21 U.S.C. § 387p (emphases added). 14 Congress thus made plain what one would otherwise presume: that the states retained broad authority to regulate cigarettes, and specifically, to ban their sale, distribution, possession, or use outright.”
Lara v. Puff Bar (D.N.J. 2021).
— 21 U.S.C. § 387p(á)(2)(A) — 1 case
R.J. Reynolds Tobacco Co. v. Phil J. Marotta, as Pers. Rep. of the Est. of Phil Felice Marotta, 182 So. 3d 829 (Fla. 4th DCA 2016).
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