With a related appeal pending in the U.S. Court of Appeals for the D.C. Circuit, what will become of pending trial litigation in Cigar Association of America, et al. v. U.S. Food & Drug Administration, et al., No. 1:16-cv-01460 (D.D.C.) (“Cigar Association”), and En Fuego Tobacco Shop LLC, et al. v. U.S. Food & Drug Admin., et al., No. 1:18-cv-1797 (D.D.C.) (“En Fuego”)?

It seems that the appeal will take the larger focus for now.

The FDA has advanced in its “procedural maneuvering” in three constitutional challenges to the Deeming Regulations. The challenges – premised on the First Amendment and on the Appointments Clause – were filed by vapor-industry plaintiffs represented by the Pacific Legal Foundation (“PLF”): Moose Jooce, et al. v. Food & Drug Admin., et al., No. 1:18-cv-203 (D.D.C.), Rave Salon, Inc. v. Gottlieb, et al., No. 3:18-cv-237 (N.D. Tex.), and Hoban, et al. v. Food & Drug Admin., et al., No. 0:18-cv-269 (D. Minn.).

On June 21, 2018, the United States Supreme Court issued its decision in South Dakota v. Wayfair.  The decision overruled decades of prior precedent holding that remote sellers of products – including tobacco products – ordinarily are not required to collect sales or excise taxes if they lack a physical presence in the purchaser’s state.  In Wayfair, the Court upheld a South Dakota statute that required sellers in other states to collect taxes for sales to South Dakota consumers if the seller annually delivers more than $100,000 worth of goods in South Dakota or makes more than 200 sales to South Dakota consumers.

Bryan Haynes, an attorney at Troutman Sanders, is featured in the February 2018 issue of SMOKESHOP outlining key considerations and legal requirements for selling tobacco online.

Read the article here

The federal government is attempting to intervene in a lawsuit between a tribal tobacco manufacturer and the State of Nebraska.

HCI Distribution Inc. (“HCI”) and Rock River Manufacturing (“Rock River”) filed a lawsuit against the State of Nebraska alleging that Nebraska was attempting to regulate the companies’ tobacco production in violation of the U.S. Constitution. HCI and Rock River are subsidiaries of Ho-Chunk Incorporated (“Ho-Chunk”), which is the economic development arm of the Winnebago Tribe.

The United States Food and Drug Administration recently obtained summary judgment on several cigar industry claims challenging the FDA’s Deeming Regulations.  The case was filed by industry plaintiffs Cigar Association of America, the International Premium Cigar and Pipe Retailers Association and Cigar Rights of America on July 15, 2016, shortly after the FDA issued the final regulations.  The plaintiffs have indicated that they will appeal the court’s decision, and have requested that the court enjoin enforcement of the FDA’s health warning requirements pending the resolution of the appeal.