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Robert Claiborne

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Robert Claiborne works primarily in the areas of litigation and compliance on behalf of tobacco manufacturers, distributors, retailers, and suppliers.

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The U.S. District Court for the Eastern District of Pennsylvania entered a permanent injunction against Philadelphia’s enforcement of an ordinance banning the sale of certain flavored tobacco products, after the U.S. Court of Appeals for the Third Circuit upheld a preliminary injunction against the same.

Litigation over a local flavor ban came to a close on March 8, 2022, with Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania entering a permanent injunction:

  • prohibiting the City of Philadelphia from enforcing City Ordinance No. 180457 (the “Ordinance”); and
  • requiring the City to void and withdraw any and all regulations regarding the Ordinance.

The case is Cigar Association of America, et al. v. City of Philadelphia, et al., No. 2:20-cv-03220 (E.D. Pa.).…

Continue Reading Philadelphia Flavor Ban Case Results in Permanent Injunction Against the City

The U.S. Postal Service (USPS) has made available the Field Information Kit and Management Instructions referenced in its November 4, 2021 Postal Bulletin, correcting hyperlinks in the Postal Bulletin. The Field Information Kit and the Management Instruction are posted to the USPS website, available here and here, respectively. …
Continue Reading US Postal Service Posts PACT Act/POSECCA Field Information Kit and Management Instructions

On February 19, 2021, a proposed rule from the U.S. Postal Service (the “USPS”), regarding the treatment of electronic nicotine delivery systems (“ENDS”) in the mail, was published in the Federal Register. The USPS will receive comments on or before March 22, 2021.
Continue Reading U.S. Postal Service Issues Proposed Rule Regarding ENDS Nonmailability and Exceptions

On December 22, 2020, we blogged about the omnibus 2021 Consolidated Appropriations Act passed by Congress, which included legislation extending the applicability of the Prevent All Cigarette Trafficking (“PACT”) Act to electronic nicotine delivery systems or “ENDS.”  The legislation, called the ‘‘Preventing Online Sales of E-Cigarettes to Children Act,’’ sweeps ENDS into the PACT Act by amending the PACT Act’s definition of a cigarette to include electronic nicotine delivery systems, thereby subjecting remote sales of these products to various requirements and restrictions.  Another important feature of this new law is that the defined term “ENDS” in this new legislation actually covers more than electronic nicotine delivery systems.
Continue Reading THC, CBD and other Non-tobacco Vaping Product Sellers Should Take Note of New PACT Act Provisions

The U.S. Court of Appeals for the Third Circuit will review a preliminary injunction against Philadelphia’s enforcement of an ordinance banning the sale of certain flavored tobacco products.

Will a preliminary injunction against Philadelphia’s flavored tobacco ban stand? The U.S. Court of Appeals for the Third Circuit will have the opportunity to decide in Cigar Association of America, et al. v. City of Philadelphia, et al., No. 20-3519 (3d Cir.), appealed from, No. 2:20-cv-03220 (E.D. Pa. Nov. 13, 2020).
Continue Reading Philadelphia Appeals Preliminary Injunction Against Flavor Ban

By Robert Claiborne, Dascher Pasco & Bryan Haynes, Troutman Pepper Hamilton Sanders LLP

Did the FDA violate the Constitution when it issued its rule Deeming Tobacco Products to Be Subject to the Federal Food, Drug, & Cosmetic Act, 81 Fed. Reg. 28,973 (May 10, 2016) (the “Deeming Rule”)? No, according to a recent decision from the U.S. Court of Appeals for the D.C. Circuit. …
Continue Reading DC Circuit Decides Deeming Rule Doesn’t Violate Appointments Clause or First Amendment

Plaintiffs have appealed to the Eighth and Ninth Circuits, challenging flavored tobacco bans in Los Angeles County, California, and the City of Edina, Minnesota. The cases could have implications for similar laws in other States and localities.

Has Congress preempted local authority to ban the sale of flavored tobacco products? Two different U.S. Courts of Appeals will have the opportunity to answer the question in R.J. Reynolds Tobacco Co., et al. v. City of Edina, et al., No. 20-2852 (8th Cir.), and R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 20-55930 (9th Cir.).
Continue Reading Two U.S. Courts of Appeals to Consider Federal Preemption of Local Flavor Bans

Cases challenging Los Angeles County’s flavored tobacco ban could define the limit of State and local authority in addressing flavored tobacco products and could have implications for similar laws in other States and localities.

Los Angeles County’s flavored tobacco ban is being challenged in two cases: R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 2:20-cv-04880 (C.D. Cal.), and CA Smoke & Vape Association, Inc., et al. v. Los Angeles County, et al., No. 2:20-cv-4065 (C.D. Cal.). Both cases are before the Honorable Dale S. Fischer of the U.S. District Court for the Central District of California.
Continue Reading Is L.A. County’s Flavored Tobacco Ban Unlawful?