Tag: litigation

  • Supreme Court to Hear Avail, Reynolds PMTA Case

    Supreme Court to Hear Avail, Reynolds PMTA Case

    TR Archives

    The Supreme Court of the United States has agreed to consider another case involving federal approval of vapes at the request of the Biden administration on Friday.

    The case arose after the Food and Drug Administration denied R.J. Reynolds Vapor Company’s request to introduce three flavored vapes on the market. The FDA said the company failed to meet federal requirements concerning tobacco products’ marketing, but the company contends that the decision was arbitrary and capricious.

    Reynolds is based in North Carolina, and the federal appeals courts located there and in D.C. already had precedent on the books unfavorable to the manufacturer.

    Under federal law, companies can challenge the FDA denying of a marketing order for a new tobacco product in Washington, D.C., or where the company’s principal place of business is located, reports The Hill.

    The 5th U.S. Circuit Court of Appeals has been more sympathetic to the industry, making it an attractive place for companies to contest their products being denied.

    The 5th Circuit’s rule effectively enables it to host any tobacco company’s challenge, so long as its lawsuit is joined by a convenience store or other retail seller within the 5th Circuit’s borders—which span Louisiana, Mississippi and Texas.

    Reynolds instead filed its challenge in the 5th Circuit alongside Avail Vapor Texas and the Mississippi Petroleum Marketers and Convenience Stores Association. The federal government attempted to move venues, but the 5th Circuit said the additional challengers meant the case was properly brought.

    No matter which way the justices rule, they are not expected to address the merits of the FDA’s denial. The Supreme Court only took up the question of whether the 5th Circuit was a proper venue.

    “There is no circuit conflict over the meaning of this venue provision. And other vehicle problems abound,” the company wrote in court filings urging the justices to turn away the appeal. 

  • Court Dismisses Njoy Lawsuits, Allows Elf Bar

    Court Dismisses Njoy Lawsuits, Allows Elf Bar

    A U.S. District Court in California has dismissed a lawsuit filed by NJOY, the vape subsidiary of Altria Group, against multiple manufacturers, distributors, and retailers of disposable vapes. However, the case against IMiracle, the manufacturer of Elf Bar, has not been dismissed.

    NJOY filed the lawsuit last October. The company alleges that the companies named in the suit are selling products illegal in California and the United States. NJOY asked for a nationwide injunction that would prevent future importation and sale of the products, and compensatory and punitive damages paid to NJOY.

    Among the companies charged were manufacturers and distributors of Breeze, Elf Bar, Esco Bar, Flum, Juice Box, Lava Plus, Loon, Lost Mary, Mr. Fog and Puff Bar. Together the brands make up the majority of the U.S. disposable vape market.

    The dismissal order was entered on Jan. 18 by Judge Terry J. Hatter Jr. of the U.S. District Court for the Central District of California. The court found that the defendants did not participate in “the same transaction, occurrence, or series of transactions or occurrences,” and therefore were improperly joined in the lawsuit. Because of that, Judge Hatter dropped all parties from the suit except the first named defendant, IMiracle, according to media reports.

    The judge entered the orders “without prejudice” allowing NJOY to refile against the dismissed defendants individually or in smaller groups with demonstrable relationships. The court also dismissed NJOY’s claim of unfair competition and its motion for a preliminary injunction barring sales and distribution by the defendants.

    The court denied NJOY’s motion to serve IMiracle, the manufacturer of Elf Bar headquartered in Hong Kong, by email, citing an established international process, the Hague Convention, for serving legal notice to foreign defendants.

    NJOY’s lawsuit against IMiracle cannot proceed until the Chinese manufacturer is served notice.

  • Foundation for a Smoke-Free World Sued

    Foundation for a Smoke-Free World Sued

    Photo: Michal Kalasek | Dreamstime.com

    A former employee of the Foundation for a Smoke-Free World claims she was fired for raising concerns about the organization’s ties to the tobacco industry, reports Bloomberg Law.

    Lourdes Liz, who worked at the Foundation as social media director from February 2018 until February 2020, says she was terminated after objecting to activities “designed to increase the profits of and to do the bidding of Philip Morris International and Altria Group.”

    In a lawsuit filed on Jan. 13 in the U.S. District Court in Manhattan, Liz maintains that the group’s close ties to the tobacco industry violate its status as an independent nonprofit organization.

    The Foundation, which has received millions of dollars in funding from PMI, has met fierce opposition from health groups. Shortly after its creation in 2017, the World Health Organization (WHO) said it would not interact with it, citing a fundamental conflict of interest between the tobacco industry and public health.

    The Foundation is led by Derek Yach, an anti-smoking crusader who, while working at the WHO, was the primary architect of that agency’s Framework Convention on Tobacco Control.

  • Trade Commission to Probe Altria and Philip Morris

    Trade Commission to Probe Altria and Philip Morris

    The U.S. International Trade Commission (ITC) will investigate Altria and Philip Morris after a complaint was filed by R.J. Reynolds. The ITC will look into certain tobacco heating elements and components.

    The ITC has not made a decision on the case but has said it will make its “final determination … at the earliest practicable time.”

  • 22nd Century settles litigation with former CEO

    22nd Century Group, a leader in tobacco harm reduction, announced Nov. 9 that the company and its former CEO and founder, Joseph Pandolfino, have settled all litigation and disputes between the parties.

    “As the founder of 22nd Century and as a major stockholder, Joe’s interests are closely aligned with those of other shareholders,” Henry Sicignano III, 22nd Century’s CEO and president stated in a press release. “We look forward to Joe’s helpful input going forward as a strategic consultant who will be tasked with assisting 22nd Century on special projects such as commercialization of Red Sun, Magic and our extraordinary modified risk tobacco products in development: ‘Brand A’ and ‘Brand B.’”

    Joseph Pandolfino said, “I am thrilled that all disagreements between me and the company have been resolved. As a strategic consultant, I look forward to working with Henry and the team to create shareholder value. 22nd Century is a unique company with an important public health mission and I remain dedicated to its success.”

    The details of the settlement have been disclosed by the 22nd Century in its filing with the U.S. Securities and Exchange Commission (SEC) of a current report on Form 8-K, which is publicly available on the SEC’s EDGAR database on the SEC website, www.sec.gov.

  • Judge spells out “corrective statements”

    A U.S. federal court has spelled out the “corrective statements” District Court Judge Gladys Kessler ordered tobacco companies to make in 2006 when she found them guilty of violating civil racketeering laws and engaging in fraud to deceive the American people about the health risks of smoking.

    The order requires tobacco companies to make corrective statements about the adverse health effects of smoking and secondhand smoke, the addictiveness of nicotine, the lack of health benefits from smoking “light” and “low-tar” cigarettes, and the companies’ manipulation of cigarette design and composition to ensure optimum nicotine delivery.

    The corrective statements must be made through newspaper and television advertising, on the companies’ web sites and on cigarette packaging.

  • Cigarette manufacturers prevail in graphic warnings suit

    Cigarette manufacturers prevail in graphic warnings suit

    The U.S. Court of Appeals for the D.C. Circuit today held unconstitutional a regulation by the U.S. Food and Drug Administration (FDA) that would have forced cigarette makers to place nine graphic health warnings on all cigarette packaging and advertising.

    Agreeing with arguments made by four tobacco manufacturers, the Court held that the proposed warnings violated the First Amendment because the FDA did not provide evidence that the graphic warnings would “‘directly advance” its interest in reducing the number of Americans who smoke.”

    “We are pleased that the Court of Appeals agreed with Reynolds that consumers can and should be fully informed about the risks of tobacco use in a manner consistent with the U.S. Constitution,” said Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, which was one of the plaintiffs.

    “Reynolds is committed to providing tobacco consumers with accurate information about the various health risks associated with smoking.”

    The Court of Appeals noted that the government can require companies to make “purely factual and uncontroversial” disclosures about the risks of their products in order to prevent consumer deception, but stated that the graphic warnings crossed into unconstitutional territory:

    “These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.”

    The Court relied on data included in FDA’s regulation that showed the graphic warnings would have little to no effect in reducing tobacco use. In particular, FDA’s analysis of the regulation estimated that the warnings would likely cause no statistically significant change in U.S. smoking rates.