Administrative-E-Cigarettes-FDA Authorization-Federal Preemption

Defendant appealed the district court’s grant of plaintiff’s motion for a preliminary injunction. Iowa passed a law prohibiting the manufacture and sale of electronic nicotine delivery systems that did not have FDA authorization. Plaintiff, a coalition of manufacturers, retailers, and consumers filed suit arguing that the Iowa law was preempted by federal law. The district court granted plaintiff a preliminary injunction, finding that it was likely to succeed on the merits of its preemption argument.

Where Congress had not clearly intended to preempt state tobacco regulation and the Iowa law did not frustrate federal regulation of tobacco products, the district court erred in concluding that plaintiff was likely to succeed on the merits of its claim.

Loken, J., concurring: “But I do not agree that “HF 2677 is not preempted,” supra at 9, and I do not agree with the conclusion in Part III.B.iv. that California v. Zook, 336 U.S. 725 (1949), is controlling on the question whether HF 2677 is preempted by what is known as “obstacle preemption,” supra at 14-17. In my view, to resolve that issue requires a far more extensive record, including evidence of how Iowa intends to enforce this open-ended statute, and how that will affect FDA’s exclusive federal statutory authority to enforce the TCA, see 21 U.S.C. § 337(a).”

Judgment is vacated.

Iowans for Alternatives to Smoking & Tobacco, Inc. v. Mosiman (MLW No. 85205/Case No. 25-2087 – 18 pages) (U.S. Court of Appeals, 8th Circuit, Grasz, J.) Appealed from U.S. District Court, Southern District of Iowa, Rose, J. (Patrick Cannon Valencia, AAG, Des Moines, IA for appellant; Breanne Alyssa Stoltze, AAG, Des Moines, IA on the brief) (James Christopher Fraser, Washington, D.C. for appellees; Anna M. Stressenger, Los Angeles, CA and Eric N. Heyer, Washington, D.C. on the brief)