Yesterday (March 10), the state of Iowa urged a federal court to deny a motion from a group of vape interests seeking to block enforcement of a newly enacted law prohibiting the sale of e-cigarette products that lack federal authorization, according to Mike Curley for Law360.
In December, a group called Alternatives to Smoking & Tobacco Inc. filed an injunction against the state of Iowa over HF 2677, which says products not authorized by the FDA are illegal and can’t be sold. The suit says the state violated the U.S. Constitution’s supremacy clause by usurping federal authority as only the FDA has the authority to govern what kinds of e-cigarettes are sold.
The state argued that because the FDA has not authorized the plaintiffs’ products, those products are illegal and there is no judicial right to buy or sell an illegal product, “and while the FDA may be deferring enforcement, that does not create a binding effect or a legally cognizable right, the state argued, so the plaintiffs lack standing.”
The state further argued that the plaintiffs haven’t shown they stand to suffer irreparable harm, as the sellers have not alleged they sell FDA-compliant vapes, and thus wouldn’t be able to sell them anyway, while the buyers have more options available than just these vape products if they wish to quit smoking, Curley wrote.
In February, the parties filed a joint motion to drop the initial injunction as the plaintiffs later that week filed a new motion and supporting brief, arguing HF 2677 runs afoul of the Federal Food, Drug, and Cosmetic Act and also violates the Equal Protection clause by treating some vape makers and sellers differently than others.
In Monday’s brief, the state argued that no such preemption exists, as it has long been the state’s purview to police the sale of tobacco and tobacco-related powers, and the FDCA contains explicit carveouts allowing states to create stricter regulations for their sale and use.
