Vapor Technology Association, et al. v. Chris Graham, Mississippi Commissioner of Revenue

Summary

The United States District Court for the Southern District of Mississippi denies plaintiffs’ motions for a temporary restraining order and preliminary injunction challenging Mississippi HB 916. The court holds that plaintiffs have not shown entitlement to a TRO and are unlikely to succeed on their claim that the statute, which regulates the sale of electronic nicotine delivery systems and establishes a directory of FDA-authorized products, is preempted by the Federal Food, Drug, and Cosmetic Act. The opinion also addresses the federal enforcement authority and enforcement-discretion arguments raised by plaintiffs.

Holdings

1. Plaintiffs were not entitled to a temporary restraining order because they did not demonstrate immediate and irreparable harm before the defendant could be heard in opposition.
2. Plaintiffs failed to show a substantial likelihood of success on their claim that HB 916 is preempted by federal law; the court concluded that HB 916 was unlikely to be an obstacle to the FDA's premarket authorization process or enforcement objectives.
3. Plaintiffs failed to show a substantial likelihood of success on their equal-protection claims because the challenged distinction between tobacco-derived and synthetic nicotine products had at least a conceivable rational basis.
4. The motion to strike was denied because, at the preliminary-injunction stage, the court may consider otherwise inadmissible evidence, including hearsay.

Questions Presented

1. Whether plaintiffs were entitled to a temporary restraining order under Federal Rule of Civil Procedure 65(b)(1).
2. Whether plaintiffs demonstrated a substantial likelihood of success on their claim that Mississippi HB 916 is conflict-preempted by the Federal Food, Drug, and Cosmetic Act and the Tobacco Control Act.
3. Whether plaintiffs demonstrated a substantial likelihood of success on their federal and state equal-protection claims based on HB 916's different treatment of tobacco-derived and synthetic nicotine products.
4. Whether defense exhibits should be stricken at the preliminary-injunction stage because they included hearsay evidence.

Disposition

other