The Ohio Supreme Court heard oral arguments Tuesday that could decide whether state officials can regulate the sale of illegal e-cigarettes.
In the case filed by the Ohio Attorney General’s office, the state argued the Delaware County retail store Central Tobacco and Stuff violated the Ohio Consumer Sales Practices Act (CSPA) by selling illegal flavored e-cigarettes.
The Food and Drug Administration (FDA) oversees tobacco product regulation, including new items like e-cigarettes or vapes. E-cigarette manufactures must obtain premarket approval from the FDA before selling them in the United States. Currently, the FDA has approved only 45 menthol or tobacco flavored e-cigarettes. This makes fruit, candy and other specific flavored e-cigarettes illegal. However, many vapes without legal approval are manufactured with labels that state they can be sold in the U.S. to appear compliant with the FDA.
The CSPA protects individual consumers from unfair and deceptive business practices. The state is arguing that Central Tobacco’s act of selling illegal e-cigarettes and not informing customers of their status is unlawful under the CSPA.
“The state's claim here is not a labeling claim. And I think one of the key ways to see that this isn't a labeling claim is that labeling is something the manufacturer does. The claim here is brought against the retailer,” said state prosecutor Samuel Peterson. “The retailer has no power to change the label on these packages. And so regardless of what the label says, the thing that is illegal is the sale.”
Lower courts have concluded federal law takes precedence on how vaping products are marked and sold to consumers over Ohio’s CSPA. The Ohio Supreme Court agreed to hear the state’s claim that under the federal Food, Drug, and Cosmetic Act (FDCA), Ohio may adopt their own laws to prohibit the sale of tobacco products.
Central Tobacco’s attorney James Fraser said the state is attempting to prosecute the case under the guise of the CSPA, when it should be tried under federal law.
“If Congress revoked the Food, Drug, and Cosmetic Act tomorrow, so federal law no longer governs the sale of tobacco products, what is their claim then? How are consumers being misled? They're not,” Fraser said.
The defense argued that to make e-cigarette sales illegal, the Ohio legislature would have to pass a specific statute banning them, rather than using the CSPA as an indirect enforcement mechanism. States like California, Massachusetts, New Jersey and New York have previously enacted similar statutes.
The court’s decision will determine if the case has legal standing.
