On April 17, a group of five state attorneys general (AG) and Google filed briefs defending the proposed $700 million settlement agreement reached in three antitrust suits[1] brought against Google.
Washington AG Prevails in Consumer Review Fairness Act Lawsuit
Washington Attorney General (AG) Bob Ferguson prevailed in his lawsuit against a plastic surgery practice, Allure Esthetic, and its owner, Dr. Javad A. Sajan (collectively, the company), alleging violations of the federal Consumer Review Fairness Act (CRFA), based upon the company’s practice of requiring patients to sign nondisclosure agreements (NDAs) that prohibited them from posting negative online reviews. The District Court granted the AG’s motion for summary judgment (in part) and found the company liable for violations of the CRFA. Damages will be decided at a later date.
What’s at Stake for the Premium Cigar Industry as DC Circuit Considers FDA Appeal?
In August 2023, Judge Amit P. Mehta of the U.S. District Court for the District of Columbia partially vacated a Food and Drug Administration (FDA) rule that had “deemed” premium cigars subject to the Federal Food, Drug, and Cosmetic Act (FDCA), known as the “Deeming Rule.” This decision exempted premium cigars from FDA’s tobacco product authorities. In September 2023, however, FDA appealed, and the U.S. Circuit Court of Appeals for the D.C. Circuit is currently weighing the matter. So, what would it take for FDA to succeed on appeal, and what is at stake for the premium cigar industry?
End Game? Federal Court Enjoins Enforcement of NCAA’s “NIL Recruiting Ban”
On February 23, U.S. District Judge Clifton L. Corker of the Eastern District of Tennessee, issued an opinion and order granting the Tennessee and Virginia attorneys generals’ (AG) request for a preliminary injunction enjoining the National Collegiate Athletic Association (NCAA) from enforcing its so-called “NIL-recruiting ban,” i.e., the current NCAA guidance that prohibits boosters and collectives from communicating with student-athletes about name, image, and likeness (NIL) opportunities before they commit to a particular school. The court found the AGs had established both a likelihood of success on the merits and irreparable harm that would occur absent imposition of the preliminary injunction. By granting the preliminary injunction, the court has set off a series of events that are sure to have wide-ranging implications both on the near- and long-term landscape of college sports.
US Supreme Court Declines to Hear Challenge to California’s Flavor Ban
Over the past decade, at least five states and hundreds of localities have passed, or attempted to pass, laws banning flavored tobacco products. To date, litigants have brought many challenges to these laws, often arguing that such bans are preempted under the federal Family Smoking Prevention and Tobacco Control Act (TCA). This argument, however, has largely proven unsuccessful — a trend that continued in January when the U.S. Supreme Court declined to hear R.J. Reynolds Tobacco Company’s challenge to California’s ban on the sale of flavored tobacco products.
ENDS Companies Take Legal Action Against Allegedly Noncompliant Competitors
Recently, NJOY LLC filed a complaint in the U.S. District Court for the Central District of California against more than 30 foreign and domestic defendants that manufacture, market, distribute, and sell tobacco products in an (indirect) effort to force them to comply with federal and state laws. R.J. Reynolds Tobacco Company and R.J. Reynolds Vapor Company (collectively, RJR) also recently filed a complaint with the U.S. International Trade Commission (ITC) against more than 25 foreign and domestic manufacturers, distributors, and retailers (collectively, the respondents) that seeks to prevent the import and resale of certain tobacco products. These lawsuits serve as two examples of how industry is trying to take independent legal action to target allegedly noncompliant actors and force them to comply with applicable law.
Congress Urges FDA to Complete Its Review of E-Cigarette Applications
On June 8, more than 50 members of Congress signed a letter addressed to Food and Drug Administration (FDA) Commissioner Dr. Robert Califf, expressing concerns over FDA’s delays in reviewing pending Premarket Tobacco Product Applications (PMTAs) and its failure to remove unauthorized products from the market. The letter strongly urges “FDA to (1) expeditiously complete review of remaining e-cigarette PMTAs; (2) follow the science on the risks flavored [e-cigarettes] pose to youth and deny PMTAs for all non-tobacco flavored e-cigarettes, including menthol flavored products; and (3) increase enforcement actions against companies that make, distribute, and sell flavored products without a marketing order, especially products with a significant market share, or products that are most popular with youth.” The letter also requests that FDA respond to several questions by June 23, as summarized below (as of the date of this blog post, we are not aware of any FDA response).
FDA Implements More Aggressive Approach to Enforcement of ENDS Premarket Requirements
In October 2022, the U.S. Food and Drug Administration (FDA) announced that the Department of Justice (DOJ), on its behalf, filed complaints against six electronic nicotine delivery system (ENDS) companies in federal district courts, seeking permanent injunctions. These cases are important because they mark the first time the FDA has litigated against companies to enforce
Washington Breweries and Distributors Sue Oregon over Beer Shipping and Distribution Laws
Several Washington breweries and beer distributors filed suit in federal court against the Oregon Liquor and Cannabis Commission, the State Attorney General, and the Governor. The out-of-state breweries are challenging Oregon laws that (1) allow resident breweries to sell, ship, and deliver beer directly to Oregon consumers with a direct shipper permit, but only allow
State Taxation of Remote Sellers: US Supreme Court Declines Review of First Post-Wayfair Decision from a State Supreme Court
In determining whether the commerce clause of the U.S. Constitution prohibits a state’s taxation of a remote seller, the U.S. Supreme Court for decades has upheld a tax if (1) there is a substantial nexus between the taxing state and the taxpayer; (2) the tax is fairly apportioned; (3) the tax does not discriminate against