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Tag: Judge

  • Utah E-Cigarette Bill Gets Favorable Ruling

    Utah E-Cigarette Bill Gets Favorable Ruling

    Utah’s Electronic Cigarettes Amendments bill, which was signed into law last March, can finally be enacted after U.S. District Judge David Barlow’s ruling. One of the main questions in the litigation centered around the state’s inspection programs, which Barlow said were not central to the case.

    The bill bans the sale of tobacco products the Food and Drug Administration has not approved or is still pending approval. It also bans all sales of flavored e-cigarettes. After it passed, the Utah Vapor Business Association and The Smoke House filed a joint lawsuit against the state, seeking an injunction on the legislation. But, in his ruling Barlow said the bill could still achieve its purpose without keeping the inspection program. Under the bill, the inspection program would have allowed state health departments to review at random.

    Barlow said the bill “says nothing about the frequency of any such inspections. It does not say that they are to occur on a temporal basis, like annually or quarterly. It does not even say that they are to occur regularly. It simply says they ‘may’ occur. In short, the inspection program seemingly leaves it in inspectors’ hands entirely as to whether any inspections occur.” The judge further said the Legislature would have passed the bill regardless of whether an inspection program was in place, adding that “these provisions are operable without the inspection program, as they provide a comprehensive program for regulating electronic cigarettes and punishing retailers that sell banned products.”

  • Judge: Calif. Tribe Didn’t Comply with Tobacco Laws

    Judge: Calif. Tribe Didn’t Comply with Tobacco Laws

    A U.S. District Judge said the U.S. Department of Justice did nothing arbitrary or capricious when the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) blocked the Twenty-Nine Palms Band of Mission Indians from shipping cigarettes. Judge Sunshine S. Sykes said Twenty-Nine Palms was fine to sell untaxed cigarettes to other Native nation tribes, but when those cigarettes were then resold to “non-Native nation customers” without collecting California taxes it was a violation of the Prevent All Cigarette Trafficking Act.

    The tribe did not dispute that the cigarettes were resold without being taxed but instead argued that when the ATF initially put it on the non-compliance list it incorrectly listed the sale to Native-nation customers as the reason before changing it to non-Native nation customers.

    “Even if the court were to hold that ATF’s argument that the tribe’s Native nation customers violate the [California Licensing Act] were improper post-hoc legal justifications, ATF’s decision remains on solid ground,” the judge said.

    In its opposition to summary judgment, the tribe said ATF’s logic undercuts tribal sovereignty, forcing tribal nations to be subject to state laws.

    “Subjecting Indian tribes to a state-licensing scheme as a condition of doing business with their own tribal members is simply unconscionable and would violate the most basic inherent sovereign right of tribes to make their own laws and be ruled by them,” the tribe said. “ATF’s failure to consider whether the application of California law as adopted in the decision allows for tribes to conduct on reservation business with their members free of state taxation and regulation was arbitrary and capricious.”

  • Florida Court Expands “Smoking” Definition

    Florida Court Expands “Smoking” Definition

    A Florida appeals court widened the definition of “smoking” Wednesday (Feb. 26) in affirming a judge’s determination that Global Hookah owed the state $1.4 million in taxes. The 2-1 decision said the company wasn’t entitled to recoup excise taxes because its tobacco leaves fell within a state statute’s definition of “other tobacco products” regardless of whether the tobacco was actually smoked by customers.

    Global Hookah argued that its products, which consist of tobacco leaves mixed with glycerol, sugar syrup, and flavorings, are heated, not combusted, and thus should not be considered tobacco for tax purposes. It was seeking a refund from taxes paid between April 2016 to January 2019.

    The First District Court of Appeal ruled that “a fair reading of ‘smoking’ encompassed the process of consuming the vapor that occurs through the process of using the leaves,” and that the state’s 1985 law was intended to tax tobacco products regardless of the details in which they were consumed.

    “As a means to yield vaporized nicotine for inhaling, there is no meaningful difference between combusting cut-up tobacco leaves, on the one hand; and subjecting those cut-up leaves to high heat by burning something else,” Judge Adam Tanenbaum wrote for the majority. “Global’s claim that the vapor from its product differs from ‘traditional’ smoke feels like splitting hairs — the ordinary person, whether in 1985 or today, would not recognize the difference.”

    Judge L. Clayton Roberts dissented, saying, “While there may be policy reasons to tax all nicotine delivery products, we cannot use the intent of the Legislature to effectively amend the adopted text.”

  • Judge Pauses FDA Menthol Ban Case to August

    Judge Pauses FDA Menthol Ban Case to August

    In a two-page order, U.S. District Judge Haywood S. Gilliam granted a request filed last week jointly by both the government defendants and the public health advocates who filed the lawsuit, seeking a stay on the proceedings until mid-August. The lawsuit filed by anti-tobacco groups seeking to challenge the Food and Drug Administration’s delay to ban menthol cigarettes was paused by a federal judge in response to moves made by the Trump administration.

    Judge Haywood S. Gilliam Jr. for the US District Court for the Northern District of California issued a stay  in the case between the African American Tobacco Control Leadership Council and the FDA over whether the agency lawfully delayed a Biden-era final rule that would ban menthol cigarettes from store shelves.

    Both parties in a joint submission proposed the stay on Feb. 18.

    In late January, the FDA withdrew its proposed rules to prohibit menthol as a characterizing flavor in cigarettes and all characterizing flavors in cigars.

    “The recent withdrawal of both proposed federal flavor bans is compelling evidence that the Trump administration is taking a less aggressive rulemaking posture compared to the Biden administration,” Troutman Pepper Locke wrote on its Tobacco Law Blog. “The Office of Information and Regulatory Affairs withdrawal filings do not detail the reasoning behind the decision. However, several comments submitted during each proposed rule’s comment period detail ample justifications for withdrawing the proposals.

    “With respect to the menthol cigarette ban, industry argued that illicit markets would proliferate, fed by consumer demand for menthol cigarettes despite the proposed prohibition.”

  • Texas Judge Blocks FDA’s Warning Label Requirements

    Texas Judge Blocks FDA’s Warning Label Requirements

    A federal judge in Texas sided with R.J. Reynolds and other tobacco companies in finding the U.S. Food and Drug Administration (FDA) went beyond its authority by requiring packaging and advertising to contain 11 specific warnings.

    U.S. District Judge J. Campbell Barker, in Tyler, Texas, blocked the FDA from enforcing a looming requirement that cigarette packages and advertisements contain graphic warnings illustrating the health risks of smoking. He said those warnings go above and beyond the nine that Congress specified when in 2009 it passed the Tobacco Control Act, which gave the FDA the authority to regulate tobacco products and mandated adoption of the graphic warnings.

    Barker said not only did the FDA adopt two extra warnings beyond the nine the law required, but it only used the exact text Congress required for two of the remaining nine.

    The FDA argued it has the authority to adjust the format, type, and text of any required labels, but Barker said that power was limited, and even if the FDA was allowed to adjust the nine warnings, it could not add the extra two.

    “Courts are not free to second-guess policy decisions expressed in the plain text of the congressional enactments,” Barker wrote.

    The judge delayed the rule’s effective date pending further litigation, preventing the FDA from proceeding to enforce it starting in February 2026. It marked the second time Barker has blocked the FDA’s warning label rule. In 2022, the judge concluded the requirement violated the companies’ speech rights under the U.S. Constitution’s First Amendment.