Another State AG Action on Electronic Cigarettes Impliedly Preempted

Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing State ex rel. Yost v. Elevate Smoke, LLC, an Ohio appellate decision holding that a state attorney general's consumer protection claims against a vaping retailer were impliedly preempted because, in substance, they sought to enforce the federal Tobacco Control Act. Mr. Alexander reports that the court found claims based on the sale of unauthorized e-cigarettes, alleged consumer deception arising from the lack of approval disclosures and labeling theories tied to the act's "Origin Label" requirements were barred under Buckman, even though some claims could have survived express preemption. The post also notes the court's additional obstacle preemption discussion and highlights the broader significance of the ruling for U.S. Food and Drug Administration (FDA)-regulated product litigation involving both state enforcement actions and private lawsuits.

READ: Another State AG Action on Electronic Cigarettes Impliedly Preempted