In what seems to be a matter of happenstance today, two courts of appeals issued decisions today holding that state laws relating to tobacco were not preempted.
First, in Iowans for Alternatives to Smoking & Tobacco v. Mosiman, the Eighth Circuit vacated a preliminary injunction against an Iowa law that prohibited the manufacture and sale of electronic nicotine delivery systems that had not yet received FDA marketing authorization. The challengers argued that the law effectively provided for state enforcement of the Tobacco Control Act. The court held that the TCA did not impliedly preempt the state law, finding the state law fell within the statute’s Savings Clause, and rejecting the notion that there was conflict preemption under either Geier or Buckman, as well as the alternate argument that obstacle preemption applied.
Concurring, Judge Loken explained he could not conclude whether there was obstacle preemption on the limited record, as it would depend on facts including how Iowa intended to enforce the statute.
Second, the Fourth Circuit issued an opinion in Vapor Technology Association v. Wooten, addressing a similar North Carolina law, which only allows vape products that have been approved by the FDA, had applications for FDA approval pending by September 2020, or are exempt from FDA approval requirements. The Fourth Circuit affirmed the district court’s denial of a preliminary injunction against the law. On the way to that conclusion, the majority rejected North Carolina’s argument that the challengers lacked standing because “federal law already makes it illegal to sell vape products that lack FDA approval,” and thus the challengers had no “legally protected interest” as required by Lujan v. Defenders of Wildlife. The court held that the relied-upon language in Lujan was “nothing more than a reformulation of the Supreme Court’s longstanding requirement that the claimed injury be judicially cognizable.”
On the merits, the Fourth Circuit held that North Carolina was not “enforcing” the FDCA, as would be necessary to implicate Buckman preemption, and that the state law did not frustrate federal objectives as would be necessary to implicate obstacle preemption.
Judge Agee concurred to expand on the standing discussion. Judge Quattlebaum dissented on the grounds that he would have found no standing–reasoning that “plaintiffs don’t have standing to challenge a state law that prohibits what is already prohibited under an undisputedly valid federal law.” Nonetheless, he noted his agreement that the law was not preempted.
