The Campaign for Tobacco-Free Kids has an active litigation program, participating in tobacco control cases in state and federal courts. In state courts, the Campaign generally appears as amicus curiae (“friend of the court”) defending state and local tobacco control measures against industry legal attack. These amicus briefs are typically joined by local, state, and national medical, public health, and community organizations.
2019 Flavored E-Cigarette Rules
Amicus Briefs Filed by Tobacco-Free Kids
Slis et al v. Michigan et al. and A Clean Cigarette Corporation v. Michigan et al. (Michigan Court of Appeals, 2020)
Case Details: Nos. 351211, 351212, 956 N.W.2d 569, 332 Mich. App. 312 (Mich. Ct. App. 2020)
Key Documents: Michigan Supreme Court amicus brief (August 5, 2020), Michigan Supreme Court amicus brief (October 25, 2019), Michigan Court of Appeals amicus brief (February 3, 2020), Michigan Court of Appeals amicus brief (October 25, 2019), Michigan Court of Appeals amicus brief (October 4, 2019), Michigan Court of Claims amicus brief (October 7, 2019), Court of Appeals decision
In an effort to combat the youth vaping crisis, in late 2019, the Michigan Department of Health promulgated emergency rules prohibiting the sale of flavored e-cigarettes. E-cigarette retailers sued to challenge the rules. Tobacco-Free Kids, joined by the Michigan Chapter of the American Academy of Pediatrics, filed six amicus briefs, in three different Michigan courts, opposing a preliminary injunction against the emergency rule and then seeking to overturn the injunction once it was issued. Ultimately, a Michigan Court of Appeals affirmed the lower court’s grant of a preliminary injunction preventing the State from enforcing the rules. The Court held that Plaintiffs were likely to prevail on their claim that the State was required to promulgate the rules through its normal processes, not its emergency process. The State later dropped its plans to permanently adopt these rules.
Vapor Technology Association et al. v. Cuomo et al. (New York Supreme Court, 2020)
Case Details: No. 906514-19, 118 N.Y.S. 3d 397, 66 Misc. 3d 800 (Supp. Ct. N.Y. 2020)
Key Documents: Amicus brief
In New York, a state trial court enjoined an emergency rule prohibiting the manufacture, sale, and possession of most flavored e-liquids as beyond the authority of the State Health Department. In March 2020, Tobacco-Free Kids filed an amicus brief, with local, state and national public health groups, supporting reversal of the trial court ruling. However, while briefing of the appeal was continuing, New York State passed legislation in April banning the sale of flavored vaping products, thus accomplishing the public health objectives of the emergency rule. Consequently, the State Department of Health allowed the emergency rule to expire, the lawsuit was rendered moot, and the parties agreed to a dismissal.
Vapor Technology Association et al. v. Washington State Board of Health et al. (Washington Court of Appeals, 2020)
Case Details: No. 19-2-05196 (Thurston County), No. 54358-3-II (Wash. Ct. App.)
Key Documents: Amicus brief
In Washington State, a state trial court denied a preliminary injunction against the Washington Board of Health’s rule prohibiting the sale of flavored e-cigarette products. When that decision went up on appeal, Tobacco-Free Kids filed an amicus brief supporting the rule as within the authority of the State Board of Health. However, the emergency rule expired before the Court of Appeals could rule.
State Taxes on Cigarettes
Amicus Briefs Filed by Tobacco-Free Kids
Naifeh et al. v. Oklahoma (Oklahoma Supreme Court, 2017)
Case details: No. 116102, 2017 OK 63, 400 P.3d 759 (2017)
Key documents: Amicus brief, Court decision
The State of Oklahoma passed legislation significantly raising fees levied on cigarettes. The law was immediately challenged in a lawsuit brought by cigarette companies, alleging that the legislation was a “bill for raising revenue,” requiring a super-majority vote in the legislature under the Oklahoma Constitution. The State argued that the bill was passed primarily as a public health measure to raise the price of cigarettes and thus discourage consumption, not as a revenue-raising measure. Tobacco-Free Kids and other public health groups filed an amicus brief supporting the State’s position. Our brief argued that the public health community was the major proponent of the bill, advocating it as a public health measure. However, the Oklahoma Supreme Court held that the bill was a revenue-raising measure that had not received the constitutionally mandated super-majority, and thus struck down the legislation.
State Preemption of Local Laws
Dwagfys Mfg., Inc. et al. v. Topeka (Kansas Supreme Court, 2018)
Case details: No. 119,269, 309 Kan. 1336, 443 P.3d 1052 (2019)
Key documents: Amicus brief, Court decision
Tobacco-Free Kids filed an amicus brief in the Kansas Supreme Court supporting Topeka’s appeal of a lower court ruling striking down the City’s ordinance that raised the minimum age for sale of tobacco products from 18 to 21. The lower court had held that the local ordinance was preempted by state law that set the minimum age at 18, despite a State Attorney General opinion that state law had no preemptive effect. Our brief, filed with the Greater Kansas City Chamber of Commerce and eighteen national, state and local public health and medical organizations, presented the evidence of the public health importance of allowing local jurisdictions to raise the minimum age as a way of reducing youth addiction to tobacco products. The Kansas Supreme Court reversed the lower court, concluding that state law does not preempt the Topeka minimum sales age ordinance.
RPF Oil Co. v. Genesee County et al. (Michigan Court of Appeals, 2019)
Case details: No. 344735, 17-109107-CZ, 330 Mich. App. 533 (2019)
Key documents: Court of Appeals amicus brief, Trial Court amicus brief, Court of Appeals decision
Tobacco-Free Kids filed amicus briefs in a Michigan trial court and Michigan Court of Appeals supporting a Genesee County Health Department regulation that would prohibit the sale of tobacco to persons under the age of 21 (Tobacco 21 regulation). The lawsuit was brought by a Plaintiff that owned and operated convenience stores in Genesee County, arguing that the Tobacco 21 regulation was preempted by Michigan’s Age of Majority Act (AMA). Our brief, joined by a broad coalition of public health groups, emphasized the public health importance of raising the sales age to 21. The Michigan Court of Appeals ruled 3-0 that the regulation raising the age for tobacco sales to 21 was preempted by the AMA.
Schwartz et al. v. Washington County (Oregon Court of Appeals, 2023)
Case details: A179834
Circuit Court case details: 22CV04386
Key documents: Amicus brief, Circuit Court decision
Tobacco-Free Kids, joined by 13 local, state, and national public health, medical and community groups, filed an amicus brief in the Oregon Court of Appeals urging the Court to reverse a circuit court decision that struck down Washington County’s flavored tobacco law as being preempted by the State’s tobacco retail licensing law. Our brief argued that the lower court decision was legally flawed and also emphasized the enormous public health benefits, particularly to youth, of the County’s flavored tobacco law. The case remains pending in the Court of Appeals.
21+ Tobacco and Vapor Retail Association of Oregon et al. v. Multnomah County (Oregon Circuit Court, 2023)
Case details: No. 23CV03801
Key documents: Amicus brief, Circuit Court decision
Plaintiffs, tobacco and vape retailers and an industry trade association, challenged a Multnomah County law prohibiting the sale of flavored tobacco products on the grounds that it is preempted by the state’s tobacco retail licensing law. Over the objections of the plaintiffs, the Court granted our motion to file an amicus brief in support of the County’s motion to dismiss the lawsuit. Our brief, joined by 12 other national, state, and local public health, medical, and community organizations, asserted that the County’s flavored tobacco law was consistent with – and not preempted by – state law, and detailed the public health benefits that the County’s law would provide to its residents. In September 2023, the Circuit Court upheld Multnomah County’s flavored tobacco law, concluding that it was not preempted by state law. Plaintiffs have appealed that decision to the Oregon Court of Appeals, which has enjoined enforcement of the flavored tobacco law while the appeal is decided.
Six Brothers, Inc. d/b/a Brookline Sunoco v. Town of Brookline (Massachusetts Supreme Judicial Court, 2023)
Case details: SJC-13434
Key documents: Amicus brief, Supreme Judicial Court opinion
Tobacco retailers challenged an innovative Brookline by-law that prohibits the sale of all tobacco products to anyone born after January 1, 2000 (sometimes referred to as a “tobacco-free generation law”), contending that it was preempted by the Massachusetts state law that raised the minimum sales age for tobacco products from 18 to 21, and that it violated the equal protection clause of the Massachusetts Declaration of Rights. Tobacco-Free Kids, joined by 11 national, state, and local public health, medical, and community organizations, filed an amicus brief in the Supreme Judicial Court of Massachusetts (the highest court in the state) urging the court to affirm a lower court ruling upholding the Brookline by-law. In addition to supporting the lower court ruling that the state law was not intended to preempt local tobacco control laws, our amicus brief emphasized the importance of preserving local authority to experiment with novel and more far-reaching tobacco restrictions, and documented examples of impactful tobacco control laws that originated at the local level and which were later adopted by states and/or the federal government. On March 8, 2024, the Supreme Judicial Court unanimously upheld the Brookline law and rejected the retailers’ preemption and equal protection arguments.
City of Columbus et al. v. Ohio (Franklin County Ohio Court of Common Pleas, 2024)
Case details: No.24CV002865
Key documents: Amicus brief
The City of Columbus and 13 other Ohio municipalities challenged a sweeping state tobacco preemption law that would eliminate all existing and future local regulations of tobacco products, including Columbus’s prohibition on the sale of flavored tobacco products. The cities alleged that the state preemption law violated their state constitutional right to exercise home rule authority, and asked the court for a temporary restraining order and preliminary injunction to block implementation of the state law, which is set to take effect on April 23, 2024. Tobacco-Free Kids and eleven of our partners filed an amicus brief in support of the city’s motion to block immediate implementation of the state law, emphasizing the public health benefits that Columbus’s flavored tobacco ordinance provides to local residents.
Updated July 24, 2023