Wisconsinites for Alternatives to Smoking & Tobacco, Inc., and its members sued David Casey, Secretary of the Wisconsin Department of Revenue, arguing that the Federal Food, Drug, and Cosmetic Act and the Tobacco Control Act preempt the state law.
The plaintiffs, who include manufacturers, distributors, wholesalers, retailers, and users of vaping products, sought to block enforcement of Wis. Stat. § 995.15. They argued the statute would force them to shut down or incur substantial fines for selling unlisted products.
The Seventh Circuit held that the Tobacco Control Act’s text preserves state authority to regulate the sale and marketing of tobacco products. The court concluded that the state law does not conflict with federal objectives and is not preempted.
Chief Judge Brennan, writing for the court, analyzed the Tobacco Control Act’s tripartite preemption structure. The opinion noted that the Act’s preservation clause allows states to enact regulations in addition to, or more stringent than, federal requirements.
The court rejected the plaintiffs’ reliance on Buckman Co. v. Plaintiffs’ Legal Comm., distinguishing the case from one involving fraud-on-the-FDA claims. The court found that relying on FDA approval as a standard for state sales restrictions is different from enforcing the federal statute itself.
The Seventh Circuit also addressed standing, finding that the plaintiffs suffered concrete injury through lost sales and the risk of forfeiture penalties. However, the court determined that the balance of equities and public interest favored the state, particularly given the plaintiffs’ delay in bringing the suit.
The court affirmed the district court’s ruling, noting that the Tobacco Control Act expressly excepts requirements relating to the sale and distribution of tobacco products from preemption.