In the Supreme Court of the United States

On Application for Stay to the Honorable Elena Kagan, Associate Justice of the Supreme Court and Circuit Justice for the Ninth Circuit, from the United States Court of Appeals for the Ninth Circuit, No. 22-56052

I hereby certify that the proposed brief of the Public Health Law Center, Public Health Law Center, Action on Smoking and Health, Changelab Solutions, the International Municipal Lawyers Association, Legal Resource Center for Public Health Policy, and the Public Health Advocacy as amici curiae in support of respondents’ opposition to the emergency application for a writ of injunction complies with this Court’s Rule 33.1(h) and recently amended Rule 37.4, as it contains fewer than 8,000 words and is less than 25 pages in length.

I declare under the penalty of perjury that the foregoing is true and correct.

Dated: December 6, 2022

Congress was concerned about the imposition of conflicting standards by various localities that would require tobacco manufacturers to make individualized products, apply separate labels, or follow unique processes for each jurisdiction that enacted a law.

Accordingly, one of the articulated purposes of the TCA is “to authorize the [FDA] to set national standards controlling the manufacture of tobacco products and the identity, public disclosure, and amount of ingredients used in such products.” 21 U.S.C. § 387 note (emphasis added).

The industry’s argument also ignores that, unlike in National Meat and other precedents it cites, Congress explicitly preserved the right of state and local governments to enact measures “relating to or prohibiting the sale” of tobacco products.

Located at the Mitchell Hamline School of Law in Saint Paul, Minnesota, the Center helps local, state, national, Tribal, and global leaders promote health by strengthening public policies.

ChangeLab Solutions is an interdisciplinary team of lawyers, planners, policy analysts, public health practitioners, and other professionals who collaborate with community-based organizations, local and state governments, and anchor institutions to create thriving, just communities.

In the Supreme Court of the United States

On Application for Stay to the Honorable Elena Kagan, Associate Justice of the Supreme Court and Circuit Justice for the Ninth Circuit, from the United States Court of Appeals for the Ninth Circuit, No. 22-56052

I, Agatha M. Cole, an attorney admitted to practice before this Court, hereby certify that all parties to the above-captioned matter have been served by sending a copy of the motion for leave to file and accompanying brief of the Public Health Law Center, Public Health Law Center, Action on Smoking and Health, Changelab Solutions, the International Municipal Lawyers Association, Legal Resource Center for Public Health Policy, and the Public Health Advocacy as amici curiae in support of respondents’ opposition to the emergency application for a writ of injunction, via United States Postal Service first-class postage prepaid mail and by electronic mail at the time of filing, at the addresses listed below:

I declare under the penalty of perjury that the foregoing is true and correct.

Dated: December 6, 2022

To hold otherwise “would make a mockery of the [Act’s] preemption provision.” Id. Nonetheless, in R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th 542 (9th Cir. 2022) (“Los Angeles County”), the Ninth Circuit held that ...

None of 1 this damage can be compensated, even if California’s law is ultimately declared unconstitutional, given the State’s sovereign immunity.

Nonetheless, the Ninth Circuit’s precedent holds that as long as a state or local law enforcing such a requirement is 4 The same issue is currently pending before the Eighth Circuit in City of Edina, No. 20-2852 (8th Cir.), which was argued ...

Nonetheless, Plaintiffs believe that Los Angeles County was wrongly decided and the plaintiffs in Los Angeles County (which include some of the Plaintiffs in this case) have sought Supreme Court review.

Nonetheless, 1 MEMO IN SUPPORT OF PRELIMINARY INJUNCTION Case No. 3:22-cv-01755-BEN-MSB 13a Case 3:22-cv-01755-BEN-MSB Document 13-1 Filed 11/10/22 PageID.54 Page 8 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ...

None of these injuries can be compensated with monetary damages given California’s sovereign immunity.

~upreme

... after considering the report and recommendation submitted under subsection (b)(2), shall-- (i) issue an order that the new product may be introduced or delivered for introduction into interstate commerce if the Secretary finds that none ...