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.
Case Summary
The AG’s complaint alleged that Central Tobacco sold e-cigarettes not authorized by the FDA, making their sale “illegal” under federal law; engaged in deceptive and unconscionable acts by not informing consumers of the lack of FDA authorization; and used labeling (sale only allowed in the United States) that could mislead consumers into believing the products were legal.
The court’s analysis focused on federal preemption under the FDCA, as amended by the Family Smoking Prevention and Tobacco Control Act of 2009. The FDCA gives the FDA authority to regulate tobacco products, including e-cigarettes, and includes both a preemption clause (prohibiting states from imposing requirements different from or in addition to federal standards regarding labeling, marketing, and premarket review) and a savings clause (allowing states to regulate sales, distribution, and other aspects not expressly preempted).
The court relied on Supreme Court precedent (Buckman Co. v. Plaintiffs’ Legal Committee) and Sixth Circuit case law (Loreto v. Procter & Gamble Co.), finding that only the federal government can enforce the FDCA’s requirements for tobacco products. If a state law claim would not exist but for the FDCA, it is impliedly preempted. Here, the AG’s claims were based on a lack of FDA authorization — a federal requirement — and thus were preempted.
The court also found that the labeling requirement (sale only allowed in the United States) was mandated by federal law for all tobacco products, regardless of FDA authorization, and that any state law claim based on this labeling was likewise preempted.
In a dissenting opinion, Judge King argued that the AG’s action was not preempted. He emphasized that the FDCA’s savings clause preserves state authority to regulate the sale of tobacco products, and that the AG’s complaint targeted deceptive sales practices, not labeling requirements. Judge King cited federal appellate decisions supporting broad state authority over tobacco sales and concluded that Congress did not intend to preempt actions like the one brought by the AG.
Conclusion
The majority held that the AG’s claims under the CSPA were preempted by federal law because they sought to enforce FDCA premarket authorization requirements. This decision highlights the complex interplay between federal regulation of tobacco products and state consumer protection laws, particularly regarding preemption and the scope of state enforcement powers.
