ST. LOUIS — An Eighth Circuit U.S. Court of Appeals panel on May 12 hearing a group of tobacco manufacturers and retailers’ challenge to a Minnesota city’s ordinance banning the sale of all flavored tobacco products questioned whether the Family Smoking Prevention and Tobacco Control Act (TCA) preempts municipalities from enacting such ordinances to the extent that states “cannot prohibit anything.”
SAN FRANCISCO — Los Angeles County and its board of supervisor in a May 7 brief urge the Ninth Circuit U.S. Court of Appeals to affirm a district court’s ruling that the county’s ban on flavored tobacco products is not preempted by federal law and does not obstruct federal regulatory goals as it says is shown by the Food and Drug Administration’s recent announcement of plans to ban menthol flavored tobacco products and all flavored cigars.
SAN FRANCISCO — Health groups that filed a lawsuit seeking to compel government agencies to ban menthol are due by May 18 to submit a joint case management update with counsel for the Food and Drug Administration, the Department of Health and Human Services (HHS) and their respective leaders regarding the litigation, just weeks after the FDA announced that it now agrees with the plaintiffs and intends to pursue a ban of all menthol flavor tobacco products, as well as all flavored cigars.
MIAMI — R.J. Reynolds Tobacco Co. (RJR) argues in a May 6 answer brief on jurisdiction to the Florida Supreme Court that the court should not hear a smoker’s widow’s appeal of an appellate panel’s affirmance of a directed verdict which RJR says did not create conflict and was proper in light of the trial court’s jury instructions regarding the burden of proof for punitive damages that the widow failed to satisfy.
WASHINGTON, D.C. — A District of Columbia Circuit U.S. Court of Appeals panel during oral arguments on May 7 questioned whether provisions of the Family Smoking Prevention and Tobacco Control Act (TCA) that require all tobacco manufacturers to pay fees to fund regulatory activities but exempt e-cigarette manufacturers are ambiguous.
NEW YORK — A nonprofit foundation funded by a tobacco company on May 5 moved in a New York federal court for dismissal of a former employee’s claims that she was retaliated against and terminated for making protected whistleblower complaints to superiors regarding her belief that the foundation’s strategies were promoting teen e-cigarette use and that the nonprofit was abusing its tax-exempt status by engaging in such activities.
BOSTON — Counsel for a tobacco company told the Massachusetts Supreme Judicial Court at oral argument on May 3 that under res judicata, a smoker’s widow awarded $21 million in a wrongful death action should have been barred from seeking punitive damages for her breach of warranty claim because a similar claim brought on behalf of Massachusetts residents was resolved by a 1998 Master Settlement Agreement that the state’s attorney general entered into with tobacco companies.
WASHINGTON, D.C. — The Food and Drug Administration, Department of Health and Human Services and their respective secretaries urge the U.S. Supreme Court in an April 28 brief to deny a petition challenging the agencies’ deeming of e-cigarettes as regulated tobacco products, arguing that Congress did not violate the nondelegation doctrine by authorizing the HHS secretary and FDA to deem tobacco products because the underlying legislation contains “intelligible principles” guiding any such action.
PHILADELPHIA — A Pennsylvania judge on April 6 enjoined the city of Philadelphia from enforcing a new ordinance that prohibits the sales of flavored vapes and restricts the sales of any e-cigarettes to adults-only establishments after finding the ordinance preempted by state law.
LOS ANGELES — A California Superior Court judge on April 16 ordered that a vape company pay $1.2 million in civil penalties for violating California tobacco laws and marketing its products to youth, writing that the penalty was appropriate because the company had violated the court’s earlier preliminary injunction and continued marketing tobacco products in ways that could be accessible to youth under the age of 21.
LOS ANGELES — A New Jersey-based vaping company and its founders on April 13 filed a complaint in California federal court alleging that vape-maker Juul Labs Inc. (JLI), its founders, board members and related entities intentionally drove it into insolvency to get rid of competition in the national vaping market through fraudulent misrepresentation, trade libel and racketeering.
SAN FRANCISCO — The California federal judge overseeing the multidistrict litigation against e-cigarette maker Juul Labs Inc. (JLI) and related entities on April 13 denied most defense motions to dismiss after finding that the plaintiffs plausibly alleged in an amended complaint that JLI was used by the defendants as a racketeering enterprise to expand youth nicotine addiction while enriching themselves, but agreed to dismiss four state sub-classes in which no class representative was identified.
TALLAHASSEE, Fla. — A Florida appellate panel on April 12 rejected a hookah distributor’s argument that it is entitled to a refund of $1.2 million it paid in taxes on sales to Florida, writing that the distributor’s lack of physical presence in Florida does not undo its tax liability for tobacco product sales.
TALLAHASSEE, Fla. — The Florida Supreme Court on March 30 scheduled oral arguments for June in an Engle appeal in which tobacco companies argue that the court must reconsider the preclusive effect of findings from the original Engle trial, while an estate representative whose $6.4 million compensatory damages award was reversed on appeal said in a March 19 reply brief that the companies are improperly attempting to relitigate Engle.
SAN DIEGO — Philip Morris USA Inc. and related entities tell a California federal court in an April 2 motion to file a notice of a recent development that the Food and Drug Administration’s recent findings that menthol-containing “Heatsticks” products are “appropriate for the protection of public health” support its argument that a pending California statewide ban on flavored tobacco products is impliedly preempted by federal law.
TALLAHASSEE, Fla. — The Florida Supreme Court heard oral arguments April 7 over whether the state’s pre- or post-1999 punitive damages statutes applies to a wrongful death action brought by the widow of an Engle class member who developed cancer from smoking in 1994, died in 2007 and later won a $5 million punitive damages award that was reversed on appeal because it was awarded under the pre-1999 statute.
PHILADELPHIA — A cigar industry association and two cigar and tobacco manufacturers write in an April 2 appellee brief that the Third Circuit U.S. Court of Appeals should affirm a district court’s ruling enjoining enforcement of the city of Philadelphia’s ordinance restricting the sales of flavored cigars and roll-your-own tobacco products because they say the court properly found that the ordinance is preempted by state law.
WASHINGTON, D.C. — The U.S. Supreme Court on March 22 gave the U.S. Department of Health and Human Services, the Food and Drug Administration and their acting leaders until June 2 to respond to a petition for a writ of certiorari filed by vaping advocates who urge the high court to review the constitutionality of the FDA’s ratification of e-cigarette regulations that were first issued by an unconfirmed assistant commissioner.
SAN DIEGO — A California federal judge on March 29 issued two predominantly identical orders granting San Diego County’s motions to dismiss two challenges to its ordinance banning sales of flavored tobacco products, one brought by tobacco companies and the other by a retail association and a vape shop, ruling that San Diego’s ordinance is not preempted by federal laws regulating tobacco products.
SAN FRANCISCO — The California federal judge overseeing the multidistrict litigation against e-cigarette maker Juul Labs Inc. (JLI) and related entities issued a March 25 tentative ruling on several motions to dismiss indicating that he will not dismiss the bulk of the plaintiffs’ claims in their class action complaint, including claims for racketeering and violating California’s unfair competition law (UCL), but that he will dismiss state subclasses without a representative and state subclasses without separate complaints.