Appellate

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On May 15, 2026, the U.S. Court of Appeals for the Fourth Circuit partially blocked Maryland’s new “greenwashing” law for retail electricity suppliers. Holding that the statute’s core advertising restriction likely violates the First Amendment, the court ordered a preliminary injunction against the provision limiting use of terms like “clean,” “green,” and “100% renewable” if the legislature’s specified conditions were not met. In contrast, the court remanded for further proceedings on Maryland’s newly issued disclosure requirements. The decision underscores the constitutional limits on how far states can go in policing environmental marketing claims — limits that are relevant to companies both in and outside the energy sector.

Over the last couple of years, we have written about a federal case brought by the Twenty-Nine Palms Band of Mission Indians (the Tribe) (here, here, and here) involving key issues related to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) authority to enforce the Prevent All Cigarette Trafficking Act (PACT Act) against federally recognized Indian tribes and ATF’s interpretation of key sections of the PACT Act. The Ninth Circuit Court of Appeals recently upheld a federal district court’s decision ruling against the Tribe.

For years, we have written (here, here, here, and here) about the decade-long effort to vacate the U.S. Food and Drug Administration’s (FDA) decision to “deem” premium cigars covered by FDA’s 2016 rule (the Deeming Rule), which swept all tobacco products under FDA authority. On April 15, the U.S. District Court for the District of Columbia issued an order that it characterized as “(hopefully) … the final chapter” in the litigation over how FDA regulates premium cigars. The parties have 30 days to appeal the order, but, if not, the order will stand.

On March 23, 2026, the U.S. Court of Appeals for the Eleventh Circuit rejected an effort to preliminarily enjoin Florida’s ban on lab‑grown meat. The Eleventh Circuit held that the Poultry Products Inspection Act (PPIA) does not preempt the state law because the outright ban on lab-grown meat does not regulate poultry facilities, operations, or ingredients.

The North Carolina Court of Appeals recently issued a decision strengthening the “sealed container” defense available to non‑manufacturing sellers in products liability cases. In Weaver v. AMV Holdings LLC, the court found in favor of a vape retailer and distributor after a lithium‑ion battery malfunctioned in a customer’s pocket, causing serious burns. For retailers and distributors — particularly those dealing with lithium‑ion batteries — this decision underscores the continued viability of sealed container defenses.

Graham K. Bryant, former principal deputy solicitor general and director of Virginia Appellate Litigation in the Office of the Attorney General of Virginia, has joined Troutman Pepper Locke’s Regulatory Investigations, Strategy + Enforcement (RISE) practice group and Virginia Appellate team. Graham’s practice centers on Virginia-focused appellate and regulatory matters, drawing on his experience handling high-stakes constitutional and policy litigation in Virginia’s courts and in federal courts, including multiple matters before the U.S. Supreme Court.

What Happened:

A unanimous panel of the U.S. Court of Appeals for the Fourth Circuit revived a suit against certain pharmaceutical distributors brought under West Virginia public nuisance law. The panel held that the effects of over-distributing prescription opioids may constitute a public nuisance under West Virginia law, defined distributors’ duties under the Controlled Substances Act (CSA), and held that abatement may include monetary funding to remediate alleged community harm. Notably, the Fourth Circuit’s decision comes after the West Virginia Supreme Court declined to determine the scope of West Virginia public nuisance law, and as a result, the decision refused to limit the scope of public nuisance law without guidance from the West Virginia Supreme Court.

On September 22, a group of 28 state AGs led by Iowa filed an amicus brief in Vapor Technology Association v. Wooten in support of North Carolina’s state directory law that prohibits the sale of electronic nicotine delivery system (ENDS) products or e-cigarettes that lack Food and Drug Administration (FDA) marketing authorization.  According to the brief, 15 states have already enacted laws similar to North Carolina’s ENDS directory law, and another 25 states are considering such legislation.

An Ohio appellate court recently affirmed the dismissal of a case brought by the Ohio attorney general (AG) against Central Tobacco & Stuff Inc. (Central Tobacco), an e-cigarette retailer, in which the AG alleged that Central Tobacco sold e-cigarettes lacking FDA premarket authorization and violated the state’s Consumer Sales Practices Act (CSPA) by failing to inform consumers about the lack of FDA authorization. See State ex rel. Attorney Gen. Dave Yost v. Cent. Tobacco & Stuff Inc., 2025-Ohio-4613 (Ct. App.). This appears to be a novel use of a state consumer protection law, which most states have, to attempt to enforce the Federal Food, Drug, and Cosmetic Act (FDCA). The court concluded that federal law preempts Ohio’s ability to enforce FDCA premarket authorization requirements through the CSPA. The court’s decision may be relevant in other cases involving a state’s attempt to enforce FDA premarket authorization requirements through their consumer protection laws.