TOBACCO CONTROL LAWS

Red Earth LLC, et al. v. United States of America, et al.

Plaintiffs, a group of Native Americans who are in the business of selling cigarettes and tobacco products via the Internet, mail and telephone, sued the US and Attorney General Eric Holder, Jr., claiming that the “Prevent All Cigarette Trafficking Act of 2009,” which requires retailers of cigarettes and smokeless tobacco who perform delivery sales to comply with all state and local laws in the jurisdiction where their products are delivered, violates their due process and equal protection rights. Plaintiffs also assert that the Act violates the Commerce Clause, the Tenth Amendment and is void for vagueness. The plaintiffs sought a preliminary injunction. Defendants argued that the plaintiffs failed to make the requisite showing necessary to enjoin enforcement of a federal statute. The Court granted plaintiffs’ motion for a preliminary injunction because there was: (1) a clear likelihood of success on the merits of their due process claim; (2) that they will suffer irreparable injury absent injunctive relief; and (3) that injunctive relief is in the public interest.

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Red Earth LLC v. U.S., 728 F.Supp.2d 238, US District Court, Western District of New York (2010).

  • United States
  • Jul 30, 2010
  • U.S. District Court, Western District of New York

Parties

Plaintiff

  • Red Earth LLC
  • Aaron J. Pierce
  • Seneca Free Trade Association
  • Seneca Smokeshop

Defendant

  • Eric H. Holder, Jr., in his Official Capacity as Attorney General of the United States
  • United States of America

Legislation Cited

Prevent All Cigarette Trafficking Act of 2009, Public Law 111-154, March 31, 2010

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)
Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Commerce
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.

Type of Tobacco Product

None

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