By Timothy S. Donahue

Top Takeaways:

• Appeal denied: The Ninth Circuit upheld the refusal to block California’s Unflavored Tobacco List.
• Preemption rejected: The court found the UTL falls within states’ authority to regulate tobacco sales.
• Speech claim: California assured the court that cigar tasting notes alone would not keep a premium cigar off the list.

California can require premium cigar companies to prove what federal law already requires: that their cigars are unflavored.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected an effort by seven premium cigar manufacturers and two industry trade groups to temporarily block California’s Unflavored Tobacco List (UTL) as it applies to premium cigars.

In an opinion published on Aug. 27, the court affirmed a lower court’s denial of a preliminary injunction sought by Rocky Patel Premium Cigars, Oliva Cigar Co., Padrón Cigars, Arturo Fuente, Ashton Distributors, La Flor Dominicana, and My Father Cigars, along with Cigar Rights of America and the Premium Cigar Association. California Attorney General Rob Bonta is the defendant.

The ruling does not end the underlying lawsuit, but it is a significant setback because the Ninth Circuit concluded that the plaintiffs are unlikely to succeed on the merits of either of the two claims at issue on appeal: that federal tobacco law preempts California’s UTL requirements for premium cigars and that the system violates the First Amendment.

“The burning question here is whether federal law preempts California’s scheme for banning sales of flavored tobacco products as applied to premium cigars,” Circuit Judge Patrick J. Bumatay wrote for the unanimous panel. “It does not.”

California enacted its UTL statute in 2024 as part of its enforcement of the state’s flavored tobacco restrictions. Tobacco products must appear on the published list before they can be offered to California consumers or supplied to retailers, wholesalers, or others for sale in the state. Manufacturers and importers must apply to the attorney general and provide information, including the product’s FDA status, a certification that it lacks a characterizing flavor, packaging and marketing information, and a product sample.

That process has been particularly contentious for premium cigar manufacturers because the FDA’s federal definition of a premium cigar already requires, among other things, that the product be handmade, contain no characterizing flavor other than tobacco, and consist only of tobacco, water, and vegetable gum, with no other ingredients or additives.

The cigar companies argued that requiring manufacturers to obtain California clearance effectively created a state-level product review system that is preempted by the federal Family Smoking Prevention and Tobacco Control Act.

The Ninth Circuit disagreed.

The Tobacco Control Act generally prevents states from imposing requirements that differ from or are in addition to federal requirements on matters such as premarket review. But its Savings Clause preserves state authority over requirements related to the sale, distribution and possession of tobacco products, among other areas.

Because appearing on the UTL is a prerequisite to selling a tobacco product in California, the court concluded that the system falls within the Savings Clause.

“Premium-cigar manufacturers may (correctly) believe that their products are unflavored under federal law, but the TCA lets California ask them to prove it,” Bumatay wrote. “The Unflavored Tobacco List and its application process help the State ensure only approved unflavored tobacco products end up on California retail shelves.”

The panel also rejected the argument that California overstepped its authority because the UTL imposes requirements directly on manufacturers rather than retailers. The court found that the Savings Clause is not limited to retail sellers, and the plaintiffs had not alleged that the UTL requires them to change how their premium cigars are manufactured.

The distinction is important. The Ninth Circuit reiterated that states cannot set their own tobacco product standards, an area reserved for the federal government. States can, however, restrict retail sales, including banning products altogether.

The cigar companies also challenged provisions that allow the attorney general to presume a tobacco product is flavored based on statements or claims made to consumers. They argued the system could chill traditional cigar descriptions that include tasting notes such as wood, pepper, or chocolate.

That argument also failed, largely because of representations made by Bonta’s office in the litigation.

The attorney general repeatedly told the court that a premium cigar would not be denied placement on the UTL because of manufacturers’ speech, provided a completed application was filed. Based on that representation, the panel concluded that the UTL imposes only a minimal burden on commercial speech and that the cigar companies were unlikely to prevail on their First Amendment claim.

The compliance costs, however, are not insignificant. Rocky Patel told the court that it had already paid nearly $50,000 in initial application fees and expected about $35,000 in annual renewal fees. The company projected that it would stop selling half of its products in California due to these costs. Current fees are $300 for an original-product application and $150 for variants or annual renewals.

The lawsuit was filed in October 2025, before the UTL took effect. After losing an initial request for a temporary restraining order, the cigar companies sought a preliminary injunction. U.S. District Judge Mónica Ramírez Almadani found they were unlikely to succeed and denied the request, prompting an appeal to the Ninth Circuit.

The appeals court has now reached the same preliminary conclusion.

When California enacted its flavored tobacco restrictions, lawmakers included an exemption for certain premium cigars. To qualify, a cigar must meet specific requirements, including being handmade, using a whole-leaf tobacco wrapper, having no filter, tip, or mouthpiece, and having a wholesale price of at least $12.

The UTL dispute centers on what manufacturers must do to demonstrate that their cigars qualify to remain on California shelves.

That burden can be especially significant for premium cigar companies, which often sell numerous variations of the same brand based on size, blend, and other characteristics. Each product or variant can require its own application and fee, even though cigars that meet the federal premium-cigar definition cannot contain added flavoring.

That is the practical problem underlying the industry’s challenge: manufacturers argue that California has created another layer of product review for cigars that federal law already defines as unflavored.

For now, that system remains in place. The underlying lawsuit can proceed, and the cigar companies could also seek rehearing from the Ninth Circuit or, eventually, ask the U.S. Supreme Court to review the dispute.

But after the appeals court’s ruling, the industry’s argument that federal tobacco law prevents California from imposing the UTL requirements faces a considerably steeper climb.

Patel’s lawsuit argues that California is overstepping its bounds. After a long fight at the federal level, the premium cigar industry won a hard-fought exemption from rigid FDA premarket reviews by the U.S. Food and Drug Administration, and manufacturers argue that California’s registry unlawfully brings those exact same burdens back through the backdoor.