Ohio ex rel. Yost v. Central Tobacco

Ohio brought an action against a tobacco retailer under the state consumer sales practices act alleging that the retailer engaged in unfair or deceptive conduct by selling e-cigarettes that were not approved by the Food and Drug Administration (FDA). The lower state courts held that the state’s claim was preempted by implication under the Supreme Court’s decision in Buckman Co. v. Plaintiffs’ Legal Committee (2001), which held that state law claims based on fraudulent representations to the FDA were preempted.

Public Citizen and National Association of Consumer Advocates filed an amicus brief in the state supreme court arguing that Buckman does not preempt the state-law claims that incorporate federal standards. Therefore, the brief explains, Buckman did not prevent Ohio from prohibiting the sale of e-cigarettes that did not have FDA approval. The brief also explains that the Tobacco Control Act expressly permits states to bar the sale of tobacco products, and argues that the court should reject a reading of Buckman that would prevent states from considering FDA approval in deciding which e-cigarettes to regulate.