We start with some disclaimers.  Not the usual disclaimers about which of the Blog authors’ respective firms deny responsibility for the post.  We disclaim that we care much about the availability of cigarettes and vaping products, except insofar as litigation over them says something about litigation over medical products and the general interplay between state law, federal law, and public health.  We also disclaim that we are ascribing the positions of the three appellate judges on the case we are discussing to their respective backgrounds and political leanings.  The internet allows our readers to engage in that exercise if they wish.

Anecdotally speaking, there seem to be many consumer protection actions related to regulated non-prescription products being brought these days.  There also seem to be many investigations and actions brought by state attorneys general that a cynic might describe as performative.  In State ex rel. Yost v. Cent. Tobacco & Stuff, Inc., No. 24 CAE 11 0103, 2025 WL 2828526 (Ohio Ct. App. Oct. 1, 2025) (“CTS”), an intermediate appellate court in Ohio affirmed the dismissal of a state AG action brought under the state consumer protection act as to the sale of certain vaping products at a specific brick-and-mortar store.  The trial court had dismissed on preemption—details of that analysis not specified in CTS—the state appealed, and the appellate court considered the issue de novo.  The CTS decision is interesting to us for two main reasons.  First, whereas most Buckman decisions involve private plaintiffs trying to enforce FDCA requirements, this was a state AG civil action that was held to be impliedly preempted.  Second, the dissent conflated express preemption and implied preemption principles and resurrected the presumption against preemption that does not apply to either.  After hundreds of published decisions that evaluate express preemption and implied preemption as independent bases for preempting state law claims under the Supremacy Clause, we did not expect such confusion.  We have authored many purportedly clever posts discussing the need to analyze both types of preemption in certain cases (e.g., Class III devices) as navigating between Scylla and Charybdis on opposite sides of the Strait of Messina.  Just because there is an express preemption provision in a relevant portion of the FDCA and the plaintiff’s claims are not engulfed by the whirlpool (Charybdis) of express preemption does not mean the six-headed sea monster (Scylla) will never be an issue.  We would not analogize to such a non-sensical myth.

The FDCA’s express preemption provisions relating to tobacco products are different from the ones we have discussed relating to Class III medical devices and OTC drugs, for example, and include both a preservation clause and a savings clause, each with carve-outs.  The net result is that some additional state requirements for tobacco products are possible, but not if they are different from or in addition to the FDCA requirements on product labeling, misbranding, and some other things.  2025 WL 2828526, *2.  These details did not really matter to the CTS majority’s decision finding implied preemption, though.  The state’s claims were based on “failing to inform consumers [via product labeling] that the e-cigarettes lack FDA authorization,” which allegedly rendered them illegal, and not on any Ohio law that made their sale illegal.  Id. at *4.  Like the sections of the MDA at issue in Buckman, FDA retains sole enforcement authority as to FDCA requirements for tobacco products.  Id.  Under the Sixth Circuit decision in Loreto v. Procter & Gamble Co., 515 Fed. Appx. 576, 579 (6th Cir. 2013), an OTC drug consumer protection class action we discussed here and here:  “If the claim would not exist in the absence of the FDCA, it is impliedly preempted.”  2025 WL 2828526, *4.  Because the state’s theory was predicated on violations of the FDCA and not any independent state law requirement, its “claim that the e-cigarettes are not in compliance with the FDCA is a claim that would not exist in the absence of the FDCA.”  Id.  The state’s last argument was that preemption decisions involving individual product liability plaintiffs and individual consumer protection plaintiffs could not bar its claims:

However, there is no authority to distinguish such cases based on public vs. private litigants or to limit their application as suggested by the State.  The reasoning set forth in both Buckman and Loreto does not depend upon the nature of the litigant.

Id. at *5.  We might have added “as long as the litigant is not the United States,” but this seems like sounds reasoning to us.

This brings us to the dissent.  There are a few issues with it, including making up something called “explicit preemption,” but we will try to limit ourselves to the two we flagged earlier, the interplay between express and implied preemption and the purported presumption against preemption.  Taking the latter first, the dissent offers that, “[f]rom a review of federal law, it appears that the presumption against preemption would apply generally [to both express and implied preemption]” and that the entirety of the federal regulatory scheme needs to be considered in interpreting an express preemption provision.  Id. at *7-8.  These propositions were purportedly based on Geier v. American Honda Motor Co., 529 U.S. 861, 870 (2000), and the Thomas dissent in Altria Group, Inc. v. Good, 555 U.S. 70, 95-98 (2008).  Geier—on the exact cited page—rejected any presumption against implied preemption.  The Thomas dissent in Altria—the CTS dissent gives 958 as the pinpoint, which we take to be 95-98—argues that there should be no presumption against express preemption and did not address implied preemption.  Later, the Supreme Court rejected any presumption against express preemption in Puerto Rico v. Franklin-California Tax-Free Trust, 579 U.S. 115 (2016), which the CTS dissent did not cite.  The only surviving presumption against preemption is in field preemption.  So, the CTS dissent’s use of a presumption against preemption for both express and implied preemption makes no sense.

We also are not sure why the CTS dissent spent so much time arguing that express preemption, with the detriment of the fictional adverse presumption, did not apply in this case.  The majority decision found implied preemption without analyzing express preemption.  The reason seemed to be that the dissent created a super-presumption that there can be no implied preemption if express preemption did not apply because of a preservation clause:  “Since the statute expressly preserves state action, it would be discrepant to hold that the portion preserving and saving state actions regulating deceptive sales is somehow an obstacle to federal enforcement.”  2025 WL 2828526, *10.  Nope.  As to the majority’s analysis of implied preemption, the CTS dissent minimizes Loreto as being unpublished and ignores Buckman entirely.  The U.S. Solicitor General cited this same portion of Loreto with approval in a 2015 Supreme Court amicus brief on implied preemption, as we discussed here.  Loreto, in turn, cited a portion of Buckman, which would have been sufficient to support implied preemption in CTS even if Loreto did not count:

On the contrary, the existence of these federal enactments is a critical element in their case. For the reasons stated above, we think this sort of litigation would exert an extraneous pull on the scheme established by Congress, and it is therefore pre-empted by that scheme.

531 U.S. 341, 353 (2001).  Like we said, we have no particular investment in the availability of vaping products, but we do care about courts getting preemption right when it comes to FDA-regulated products.  It certainly helps to read the cases being cited, but we also have plenty of readily-available posts that explain a number of the subjects presented in the two opinions in CTS.