Check the Box: What the Ninth Circuit's Unflavored List Ruling Gives, and Takes From, Premium Cigars

When the Ninth Circuit ruled in Rocky Patel Premium Cigars, Inc. v. Bonta, most coverage reported the result: the cigar industry lost its appeal. That is accurate, but it is the least useful thing about the opinion. Judge Bumatay, writing for a panel that included Judges Paez and Callahan, did three things that will shape how premium cigars are sold in the western United States for years. He drew a line between what states may and may not demand of manufacturers. He accepted, as the basis for the ruling, a specific promise from California's Attorney General. And he explained exactly why a cigar's label can become evidence against it.

The ruling in one paragraph

California's flavored tobacco ban, Health and Safety Code section 104559.5, prohibits retail sale of tobacco products with a characterizing flavor other than tobacco. The Unflavored Tobacco List statute, enacted by AB 3218 in 2024, turned that ban into a pre-approval system. Since January 1, 2026, a tobacco product may not be offered to California consumers, or to retailers and wholesalers for sale in California, unless it appears on the Attorney General's list. To get there, a manufacturer or importer files an application with a product description, its FDA status, a certification that it has no characterizing flavor, packaging and marketing materials and a sample. Seven family cigar companies, Cigar Rights of America and the Premium Cigar Association argued that federal law preempts the scheme as applied to premium cigars and that it chills their speech. The district court found neither claim likely to succeed, and the Ninth Circuit agreed.

The preservation sandwich, and the slice the court left alone

The Tobacco Control Act's preemption provision, 21 U.S.C. § 387p, has three layers, which the Ninth Circuit has called a "preservation sandwich." The Preservation Clause lets states regulate tobacco more strictly than federal law. The Preemption Clause then forbids state requirements "different from, or in addition to" federal requirements on specified subjects, including premarket review and product standards. The Savings Clause then rescues state 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.

The industry's strongest argument was that the list is a state premarket review system, a subject Congress gave to FDA, and that FDA has exempted premium cigars from premarket review. The court did not reject that argument. It assumed, without deciding, that the list is a requirement relating to premarket review, and held that it is saved anyway because it relates to sale. Two points in that reasoning deserve attention.

First, the court read "relating to" as broadly as possible. Relying on the Supreme Court's 2026 decision in Chevron USA Inc. v. Plaquemines Parish, it held that even an indirect connection to sales is enough unless the connection is "tenuous, remote, or peripheral." Because no product can be sold in California without being listed, the connection was direct.

Second, the court rejected each limit the industry proposed. The Savings Clause is not confined to rules aimed at retailers; it says nothing about who in the chain it covers, and several of its subjects, such as distribution and information reporting, happen outside stores. It does not require a historical twin; a new method of enforcing a sales ban is still an exercise of the states' traditional police power. And the ban on possessing unlisted products is saved because, as the Attorney General described it, it reaches only retailers and wholesalers holding product for sale.

What survives is the line between selling and making. A state may decline to allow a product on its shelves, or require proof before allowing it. A state may not set a product standard, directly or through a sales ban that in practice tells manufacturers how to make their products. The court said the industry lost on this point because it never alleged that the list requires any change in how premium cigars are manufactured. That is a roadmap. A future challenge that shows a state list effectively dictating ingredients, processes or blend specifications would present a different case. A challenge that only shows cost and paperwork will not.

The promise on the record

The First Amendment claim focused on the statute's presumption. Under section 104559.1(d), the Attorney General must presume a product is flavored if its maker has made a statement to consumers or the public that it has a characterizing flavor, "including, but not limited to, any text, color, or images on the product's labeling or packaging" that communicates flavor "explicitly or implicitly." The industry argued that this would make cigar companies stop describing the leather, cocoa, fruit and herbal notes that premium smokers look for.

The court did not hold that the presumption is harmless in general. It held that, for premium cigars, the burden is minimal because of how the Attorney General said he would apply it. A cigar that meets FDA's premium definition cannot, by definition, contain a characterizing flavor other than tobacco, so a certification that the cigar is exempt under 21 C.F.R. § 1114.1(d) and § 1114.3 "automatically and immediately rebuts" the presumption. The Attorney General told the court the process "literally is checking a box," and that anything a manufacturer has said about the product "doesn't come into play."

In practical terms, the industry's First Amendment protection in California is now a representation made by the state's lawyers to win an appeal. That has value. A party that persuades a court to accept a position generally cannot reverse course later to gain an advantage, and the panel has signaled how it would view a denial based on tasting notes. But a representation is not a statute or a regulation, and it lasts only as long as the office honors it. The sensible response is documentation. Every premium cigar application should include the federal certification in clear terms, and every approval, request for more information and denial should be kept. If the Attorney General ever denies or removes a certified premium cigar because of its marketing, that record is the as-applied case the court described.

Who gets the shortcut, and who does not

The box-checking process is available only to cigars that satisfy FDA's definition of a premium cigar in 21 C.F.R. § 1114.3. Among other requirements, a qualifying cigar must be hand-made, have no characterizing flavor other than tobacco and contain only tobacco, water and vegetable gum. That definition matches the one Judge Mehta reaffirmed in April, discussed in The Line Holds, and it excludes infused cigars, sweet-tipped cigars and anything with an ingredient beyond those three.

For a cigar outside that definition, the opinion offers no comfort. The presumption applies in full, and the manufacturer must rebut it with evidence. California's own premium cigar definition, with its $12 wholesale price floor, is a separate test that governs a different question and should not be confused with the federal definition that unlocks the box-check. A product line that sits near the boundary, for example a handmade cigar with a sweetened tip or a flavored wrapper, should be reviewed against the federal text before anyone assumes it qualifies.

Brand names and trade dress are now regulatory facts

This is the part of the opinion that matters most to brand owners, and it has received the least attention. The statutory presumption is triggered by "text, color, or images" on labeling or packaging that communicate flavor "explicitly or implicitly." A brand name is text on the label. A band color scheme is color. A box illustration is an image.

In my view, that turns trademark and packaging decisions into California regulatory facts for any cigar that cannot use the federal premium certification. A mark that evokes a dessert, a fruit, a liqueur or a coffee drink, a band in the colors associated with a flavor, or packaging art showing beans, berries or a pastry can each support the presumption, even if the product contains nothing but tobacco and the name was chosen for reasons that have nothing to do with taste. The same is true of statements "directed to consumers or to the public," which can include website descriptions and promotional copy, not just the box.

For a cigar that meets the federal definition, the Attorney General's representation should neutralize these concerns, subject to the caveats above. For everything else, brand clearance for a product that will be sold in California should include a review for flavor signals under section 104559.1(d), alongside the usual likelihood-of-confusion analysis. It is far cheaper to choose a name and trade dress with this in mind than to rebut a presumption, or to rebrand a product the state has removed from the list.

The cost of proving a negative

The opinion records the economics in unusual detail. The statute authorizes fees of up to $1,000 per product or variant application. Current regulations set $300 for an original application and $150 for each variant or annual renewal. Because premium cigars are made in many sizes and blends change, the application count adds up quickly. Rocky Patel estimated it had paid nearly $50,000 in initial fees, expected about $35,000 a year in renewals and projected that it would stop selling about half its products in California because of compliance costs.

The court never weighed those burdens. Because the industry failed to show a likely success on the merits, the panel did not reach irreparable harm, the balance of equities or the public interest. The costs are real, but the opinion confirms they are not a legal argument by themselves. For many companies, the practical answer will be portfolio decisions: which sizes and limited releases are worth listing in California at all, and how to schedule renewals and new releases to control fees.

A template, not an outlier

Because the opinion is published, it is binding precedent in every federal court in the Ninth Circuit. A state in that circuit that wants to adopt a flavor list now has an appellate opinion approving the method, along with the Attorney General's comparisons that the court found persuasive: the directories states keep under the 1998 Master Settlement Agreement, and fire-safe cigarette laws that require manufacturers to certify compliance before sale. The opinion also confirms that a list may impose its duties on manufacturers and importers, not just retailers, and that a new enforcement method needs no historical precedent.

Outside the Ninth Circuit, the opinion is not binding, but it is the most detailed appellate treatment of a state flavor list to date and will be cited in any challenge to a similar law.

For manufacturers and importers

If you sell into California, or into a state that may follow it, the opinion suggests a few concrete steps:

• Confirm, product by product, whether each cigar meets every element of 21 C.F.R. § 1114.3, and state the federal exemption plainly in every application.
• Keep a complete record of each application and the Attorney General's response, including any request for more information or any removal.
• For any product outside the federal definition, review the brand name, band, box art, website copy and tasting notes against section 104559.1(d) before launch.
• Decide which sizes and releases are worth listing, and plan renewals and new launches around the fee structure.
• Watch for copycat list statutes in other western states, where this opinion will be binding.

What to watch

The preliminary injunction stage is over, but the case is not. The litigation returns to the district court on the merits unless the plaintiffs seek further appellate review, and the plaintiffs also filed a parallel suit in state court. The most important development to watch is not in either courtroom. It is whether the Attorney General's office continues to list every certified premium cigar, as it told the Ninth Circuit it would. If it does, the industry has a workable, if expensive, system. If it does not, the opinion itself says the analysis changes.