Check the Box: What the Ninth Circuit's Unflavored List Ruling Gives, and Takes From, Premium Cigars
The Ninth Circuit let California make cigar companies prove their products are unflavored. The industry lost the injunction, but it won something on the record that may matter more, and the opinion now sets the rules for flavor lists across nine western states.
- On August 27, 2026, in a published opinion, the Ninth Circuit affirmed the denial of a preliminary injunction against California's Unflavored Tobacco List. The decision binds federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
- The court held that the list falls within the Tobacco Control Act's Savings Clause because getting on the list is a condition of selling in California. It assumed, without deciding, that the list is also a "premarket review" requirement.
- The industry's most valuable result is in the First Amendment section. The court relied on the Attorney General's repeated statement that a cigar certified as premium under FDA's definition goes on the list regardless of how its maker describes its flavor.
- That protection reaches only cigars that meet the federal definition in 21 C.F.R. § 1114.3. For every other cigar, brand names, colors, images and tasting notes can trigger California's presumption that the product is flavored.
- The opinion is a template. It approves the method, endorses the comparison to Master Settlement Agreement directories and fire-safe certification laws, and tells other states what a flavor list can and cannot do.