May 21, 2018

PLF continues fighting for small vape shops against regulatory overkill

By Oliver J. Dunford Attorney

In response to three lawsuits PLF filed to vindicate the constitutional rights of small vape-shop owners across the country who are threatened by FDA’s unconstitutional regulation of their livelihoods, the federal government’s first tactic is an attempt to transfer cases filed in Minnesota and Texas to its “home court” in Washington, D.C., where the third lawsuit sits. The government even claims that combining the three lawsuits would be more convenient for our clients—even though our clients are spread throughout the country.

As we explain in our briefs (here and here), the government’s requests should be denied. First, the cases should be resolved where they were filed—Minnesota and Texas—because those are the states where the Minnesota and Texas vape-owners were harmed; and the government has more than enough resources (in Minnesota and Texas and everywhere else) to litigate in multiple jurisdictions at the same time.

But inefficiency is not a real concern here anyway. These cases involve pure questions of law—(1) whether a career civil-servant, as opposed to an Officer of the United States, lacks the authority to issue comprehensive, binding rules on small businesses; and (2) whether the First Amendment protects our clients’ rights to communicate truthful information. These questions can be resolved without overtaxing the courts.

The government also worries that different courts could issue inconsistent rulings. But this is a feature, not a bug, of our federal court system. This multi-jurisdictional system allows—indeed, encourages—the careful consideration of important legal questions by multiple courts. Federal courts outside the Beltway are more than capable of giving careful consideration to the important legal questions at issue in these lawsuits. And as this case percolates through the courts, the multiple opinions—even if initially inconsistent—will ultimately lead to a thoroughly considered result. Therefore, the government’s desired transfer and consolidation of these three cases here “would substantially thwart the development of important questions of law.”

* * *

The stakes are high. These lawsuits will impact not only our clients, but all small vaping businesses across the country. Under the “Deeming Rule,” e-cigarettes and other vaping products have been “deemed” to be tobacco products subject to the Tobacco Control Act of 2009. Vaping products, however, are not covered by the terms of the Tobacco Control Act, and they contain no tobacco. Nonetheless vape-shop owners must now comply with the Tobacco Control Act’s extensive, time-consuming, and expensive regulations.

We look forward to defeating the government’s transfer motions and ultimately to invalidating the Deeming Rule. For more information, please see our case page here, and our previous blog-posts on this case here, here, and here.

* * *

Thanks finally to our local counsel: Jason Weber and Trey Crawford of Crawford, Wishnew & Lang PLLC; and James Dickey from Mohrman, Kaardal & Erickson, P.A.

learn more about

Vaping Litigation

Electronic nicotine delivery systems—vaping devices and e-cigarettes—first hit U.S. stores in 2007. It didn’t take long for vaping to jump from zero to a $5 billion domestic industry, as entrepreneurs quickly recognized a market hungry for an alternative to traditional cigarettes. In 2016, just as the burgeoning vaping industry was getting off the ground, the Food and Drug Administration (FDA) stepped in with a rule that deems e-cigarettes as tobacco products, and brand new, severe regulations that will only harm the industry and perhaps overall public health—contrary to the agency’s very mission. Using a unique legal theory, Pacific Legal Foundation is suing the FDA in three separate federal courtrooms—at the same time—on behalf of vape store owners and a harm reduction organization in several states who want to promote a more healthy alternative to smoking. The unconstitutional rule burdens these individuals and organizations in unique ways, but all are united in opposition to its continued enforcement. The FDA’s regulations are not only expensive and onerous, and prevent vaping entrepreneurs from fulfilling what they believe is a humanitarian mission of helping people, but the rule was illegal the second it hit the Federal Register.

Read more

What to read next