Five months ago, we posted on a decision from an Ohio intermediate appellate court finding that a state AG action against sellers of vaping products was impliedly preempted under Buckman.  Part of what got our attention about the decision 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”)—now published at 273 N.E.3d 714—was that implied preemption applied to a state AG action the same as it would have to a private action.  We also were taken aback by how the CTS dissent seemed confused about some preemption basics.  In State ex rel. Yost v. Elevate Smoke, LLC, No. C-250175, 2025 WL 3688747, — N.E.3d — (Oh. Ct. App. Dec. 19, 2025) (“Elevate”), we end up with the same result as to “identical” claims brought by the same state AG against a different vaping retailer.  Despite the overlap, we thought that Elevate was worth discussing.  For one thing, whereas the CTS decision by Ohio’s Court of Appeals for the Fifth District was split, the First District’s decision in Elevate was unanimous.  Ergo, it lacked a dissent that someone looking to avoid preemption could cite.  It also added that the plaintiff’s claims were preempted under an obstacle theory, something raised as stalking horse in the CTS dissent and not argued by the defendant in Elevate.  Seeing the same counsel representing the defendants in both CTS and Elevate and advancing the same preemption arguments also reveals the broader strategy of a self-described “preemption nerd” to advance the law that might also favor manufacturers of FDA-regulated medical products when they get sued by a state AG or a private litigant.  (James Fraser gets the much sought-after “shout out” from us.)

As in CTS, in Elevate,Ohio’s AG went after a retailer for selling vaping products that FDA had not approved—making them “adulterated” in FDCA terms—and for not including labeling identifying them as such.  The asserted claims were framed under Ohio’s consumer protection laws but clearly emanated from FDA requirements.  The Elevate trial court found all the claims were impliedly preempted under Buckman.  In its ruling, the trial court took a motion to dismiss and converted it to a motion for summary judgment because extraneous materials attached to the complaint were considered.  The first part of the appellate decision involved determining that the trial court’s citation of Ohio’s version of 12(b)(6) was harmless error because the preemption decision rested solely on questions of law with no real dispute about whether any operative facts were disputed.  Although we are procedural sticklers, this error was clearly harmless; if the plaintiff lost under a 12(b)(6) standard, the plaintiff would have lost under a Rule 56 standard.

The meat of Elevate started with a detailed discussion of the Family Smoking Prevention and Tobacco Control Act (“TCA,” as used in Elevate), how it affects vaping products, how plaintiff’s asserted claims relate to it, and some of the basics of express and implied preemption.  By and large, the discussion of preemption was strong and included a number of the drug decisions we discuss on a regular basis.  Compared to the typical express preemption language applicable to Class III devices, OTC drugs, or vaccines, the carve-out in the TCA is broader, consistent with an “explicit decision to preserve for the states a robust role in regulating, and even banning, sales of tobacco products.”  2025 WL 3688747, *7 (quoting U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 436 (2d Cir. 2013)).  Relevant here, “more stringent” state requirements “relating to . . . the sale . . . advertising and promotion of . . . tobacco products” are not expressly preempted, meaning additional point-of-sale restrictions by states are not expressly preempted.  Id. at *8-9.  At least some of plaintiff’s claims survived express preemption,

Unlike the dissent in CTS, the court in Elevate understood that claims can be impliedly preempted even if a statutory carve-out saves them from being expressly preempted.  After citing the right law and noting that the trial court and CTS found these claims impliedly preempted under Buckman, the Elevate appellate court found the claims impliedly preempted under Buckman.  With two minor gripes, we find the analysis in Elevate thorough and correct.  Plaintiff’s counts—whether tied to the sale of the unapproved products, allegedly misleading consumers that the products were approved by not saying they were unapproved, or failing to explain what the “Origin Label” required by the TCA means—all sought to enforce the TCA.  Id. at *11-12.  Only FDA can do that, just as Buckman found with the FDCA and medical devices.  “In substance, by seeking to create civil liability for Elevate Smoke’s sale of unauthorized e-cigarettes, the State seeks to enforce the TCA.”  Id. at *11.  The analysis of the “Origin Label” theories of liability noted that the defendant could not have simultaneously complied with the federal requirements and the proposed state obligation.  Quoting Bartlett, the Elevate court noted, “The preemption doctrine does not force an actor faced with competing state and federal laws ‘to cease acting altogether in order to avoid liability.’”  Id. at *12.  The court also rejected the plaintiff’s argument that the proposed application of Ohio’s consumer protection law was like the directory requirements in Wisconsin and North Carolina statutes that other courts had found not preempted.  It clearly was not.

Lastly, in a footnote to the impossibility discussion, the Elevate court included a brief discussion of why the claims based on the “Origin Label” would also be impliedly preempted under an obstacle theory.  Id. at *12 n.2.  “The TCA imposes strict labeling requirements to limit consumer confusion and to combat illicit trade of tobacco products . . . . [and c]ompliance with [the proposed state requirements] would weaken Congress’s attempt to prevent illicit trade and frustrate the stated purpose of the TCA.”  Id.  This may be a bit too sui generis to be used in drug or device preemption arguments, but, where an obstacle argument (even if made by the court itself) has won, we like to point it out.

Us being us, we also like to air our gripes.  First, the court said there was a presumption against implied preemption because state regulation of tobacco predated federal law.  That would make sense for field preemption, where a presumption against preemption still exists, but there is no such presumption for implied preemption regardless of the product at issue.  We have explained this more than a few times.  Second, the court noted that plaintiff had raised the Tenth Amendment in suggesting its claims were less vulnerable to implied preemption than those of a private litigant.  It would have been good for the court to reject that argument expressly.  It did so impliedly by noting that only the federal government can enforce the FDCA/TCA.  Neither the state AG nor private litigants are the federal government.  However, the Tenth Amendment should not help the plaintiff anyway because the TCA fits within a few powers delegated to the federal government in the Constitution.  Also, the Supremacy Clause is the ultimate source for all federal preemption, so the Tenth Amendment is a red herring.  Elevate may have had other reasons to reject the argument, which could have been cited when other State AG plaintiffs try to get creative in arguing against implied preemption.  They will surely keep bringing preempted claims and arguing that their status protects them from implied preemption that would bar similar claims brought by private plaintiffs.