State ex rel. Yost v. Elevate Smoke, L.L.C.

2025 Ohio 5652

• Court: Ohio Court of Appeals
• Decided: December 19, 2025
• Docket: C-250175
• Status: Published

Opinion

[Cite as State ex rel. Yost v. Elevate Smoke, L.L.C., 2025-Ohio-5652.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, EX REL. ATTORNEY : APPEAL NO. C-250175 GENERAL DAVE YOST, TRIAL NO. A-2403034 : Plaintiff-Appellant, : vs. : JUDGMENT ENTRY ELEVATE SMOKE, LLC, d.b.a. ELEV8 SMOKE SHOP, :

Defendant-Appellee. :

This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 12/19/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as State ex rel. Yost v. Elevate Smoke, L.L.C., 2025-Ohio-5652.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, EX REL. ATTORNEY : APPEAL NO. C-250175 GENERAL DAVE YOST, TRIAL NO. A-2403034 : Plaintiff-Appellant, : vs. : OPINION ELEVATE SMOKE, LLC, d.b.a. ELEV8 SMOKE SHOP, :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 19, 2025

Dave Yost, Attorney General of Ohio, and Drew A. Smith, Senior Assistant Attorney General, for Plaintiff-Appellant,

Thompson Hine, LLP, James C. Fraser, Eric N. Heyer and Benjamin G. Sandlin, for Defendant-Appellee. [Cite as State ex rel. Yost v. Elevate Smoke, L.L.C., 2025-Ohio-5652.]

BOCK, Judge.

{¶1} Recognizing the scourge of America’s tobacco addiction, Congress

passed the Family Smoking Prevention and Tobacco Control Act (“TCA”), which

subjects electronic cigarettes1 (“e-cigarettes”) and other tobacco products to the Food

and Drug Administration’s (“FDA”) regulatory authority. Under the TCA,

manufacturers must seek authorization from the FDA before marketing a new e-

cigarette to the public. And e-cigarette labels, packaging, and shipping containers

must state, “sale only allowed in the United States” (“Origin Label”). This appeal

concerns the interplay between these statutory directives, and the federal law’s explicit

and implicit preemption of state authority over tobacco products.

{¶2} Specifically, we must decide whether the TCA explicitly or implicitly

preempts plaintiff-appellant State of Ohio, ex rel. Attorney General Dave Yost’s

(“State”) claims, which allege that the sale of unauthorized e-cigarettes bearing the

Origin Label are deceptive and unconscionable sales practices in violation of Ohio’s

consumer-protection laws. We hold that the TCA implicitly preempts the State’s

claims because they exist solely by virtue of the TCA’s premarket-authorization

requirements and conflict with the TCA’s labeling requirements.

{¶3} We overrule the State’s assignments of error and affirm the trial court’s

grant of summary judgment.

I. Factual and Procedural History

{¶4} According to the facts alleged in the complaint, defendant-appellee

Elevate Smoke, LLC, d.b.a. Elev8 Smoke Shop (“Elevate Smoke”), sells tobacco

products, including e-cigarettes, in Norwood, Ohio.

1 Electronic cigarettes are devices that vaporize a liquid mixture of nicotine, “flavorings,” and other

chemicals for the user to inhale. See 81 Fed.Reg. 28974, 29029 (May 10, 2016). OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Citing the health risks posed by e-cigarettes and their popularity, the

Ohio Attorney General’s Office of Consumer Protection warned Elevate Smoke, in

writing, that retail tobacco stores may be liable under the Ohio Consumer Sales

Practices Act (“CSPA”), R.C. 1345.02, for “holding out” for sale any unauthorized e-

cigarette that bears the Origin Label.

{¶6} After an investigator for the attorney general’s office bought from

Elevate Smoke “Mr. Fog Max Air” and “EB Create, BC5000,” two unauthorized e-

cigarettes bearing the Origin Label, the State sued Elevate Smoke in a four-count

complaint, seeking a declaratory judgment and a permanent injunction. The State

alleged that the sale of unauthorized e-cigarettes constituted a deceptive sales act in

Count 1 and an unconscionable sales act in Count 2. It alleged that selling

unauthorized e-cigarettes bearing the Origin Label was a deceptive sales act in Counts

1 and 4, and an unconscionable sales act in Count 2. Finally, the State alleged that

Elevate Smoke’s failure to disclose the e-cigarettes’ unauthorized status constituted a

deceptive sales act in Count 1 and violated Elevate Smoke’s duty to disclose under

Ohio’s administrative code in Count 3.

{¶7} Elevate Smoke moved to dismiss the complaint, arguing that federal law

expressly and implicitly preempted the State’s Ohio law claims. It attached evidence

to its motion. The trial court converted Elevate Smoke’s motion to dismiss to a motion

for summary judgment. The State filed supplemental evidence.

{¶8} The trial court granted summary judgment in Elevate Smoke’s favor and

found that federal law preempted the State’s claims and that the State failed to “state

a claim upon which relief can be granted.” The State appeals.

4 OHIO FIRST DISTRICT COURT OF APPEALS

II. Analysis

{¶9} The State challenges the trial court’s judgment in two assignments of

error. First, the State argues that the trial court applied the wrong standard for

reviewing Elevate Smoke’s converted motion. Second, the State maintains that claims

under the CSPA are not preempted by federal law.

A. The trial court’s citation to the standard for dismissal under Civ.R. 12(B)(6) was harmless error

{¶10} The State argues that the trial court improperly analyzed the converted

motion under the standard for reviewing a motion for dismissal under Civ.R. 12(B)(6).

It insists that the trial court should have determined that a genuine issue of material

fact exists precluding summary judgment.

{¶11} When deciding a Civ.R. 12(B)(6) motion to dismiss, a court must accept

the allegations in the complaint as true and decide whether the complaint alleges facts

that would entitle the plaintiff to relief. See Plush v. City of Cincinnati, 2020-Ohio-

6713, ¶ 12 (1st Dist.). To that end, Civ.R. 12(B)(6) provides the proper means to resolve

legal questions at an early stage. See Neitzke v. Williams, 490 U.S. 319, 326 (1989)

(explaining that “[Fed.R.Civ.P.] 12(b)(6) authorizes a court to dismiss a claim on the

basis of a dispositive issue of law.”).

{¶12} A court considering a motion to dismiss “is confined to the allegations

in the complaint.” Plush at ¶ 12. While a court may take judicial notice when deciding

a motion to dismiss in some situations, a court may not rely on evidence to decide the

motion. See Fontain v. Sandhu, 2019-Ohio-2750, ¶ 20 (1st Dist.). If a motion to

dismiss relies on evidence or matters outside of the pleadings, a court must “disregard

extraneous material or [] convert a motion to dismiss into a motion for summary

judgment.” Keller v. City of Columbus, 2003-Ohio-5599, ¶ 18; see Civ.R. 12(B).

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶13} Here, the trial court converted Elevate Smoke’s Civ.R. 12(B) motion to

a summary-judgment motion based on the extraneous materials attached to the

motion. At that point, Civ.R. 12(B) directed the court to dispose of the motion “as

provided in [Civ.R.] 56” and give the parties a “reasonable opportunity” to present all

permitted materials.

{¶14} To grant a summary-judgment motion, a court must construe the

evidence in the nonmoving party’s favor, find that no genuine issues of material fact

exist, and conclude that the moving party is entitled to a judgment as a matter of law.

See Uren v. Scoville, 2021-Ohio-3425, ¶ 12 (1st Dist.). Summary judgment is designed

to assess the parties’ evidence and “determine whether triable issues of fact exist.”

Walker v. Hodge, 2008-Ohio-6828, ¶ 19 (1st Dist.). And when a trial court finds that

no triable issues of fact exist, summary judgment is “an abbreviated mechanism of

resolving disputes” of law. Beswick Group. N. Am., LLC, v. W. Reserve Realty, LLC,

2017-Ohio-2853, ¶ 12 (8th Dist.).

{¶15} We agree with the State that the trial court cited the wrong standard,

but we hold that the error was harmless. The trial court converted Elevate Smoke’s

motion to dismiss into a motion for summary judgment, referenced that conversion in

its decision, but cited the motion-to-dismiss standard and Civ.R. 12(B)(6) when it

granted Elevate Smoke’s motion and dismissed the State’s complaint. To the extent

that the trial court relied on the wrong standard for reviewing a motion for summary

judgment, it erred.

{¶16} But the trial court’s error was harmless. See Strama v. Allstate Ins. Co.,

2015-Ohio-2590, ¶ 43 (7th Dist.). The only issues decided below, and presented to this

court for appeal, are issues of law, not fact. Indeed, Elevate Smoke did not dispute the

State’s factual allegations about the relevant tobacco products’ unauthorized statuses.

6 OHIO FIRST DISTRICT COURT OF APPEALS

The State contends that a genuine issue of material fact exists as to whether the TCA

mandates that “illegal,” or unauthorized, tobacco products must bear the Origin Label.

But the answer to that question lies in the statutory text, and the meaning of a statute

is a question of law for the court to decide. See Vontz v. Miller, 2016-Ohio-8477, ¶ 26

(1st Dist.). And the ultimate issue in this case—preemption—is a question of law. See

State v. CSX Transp., Inc., 2022-Ohio-2832, ¶ 11, citing Merck Sharp & Dohme Corp.

v. Albrecht, 387 U.S. 299, 302 (2019). Because the issues before the trial court were

legal, and not factual, the trial court’s error was harmless.

{¶17} The State also argues that the trial court committed reversible error by

considering Elevate Smoke’s inadmissible evidence. But there is no indication that the

trial court relied on this evidence when it decided Elevate Smoke’s motion.

{¶18} In conclusion, the trial court’s erroneous use of the motion-to-dismiss

standard was harmless because the converted motion for summary judgment raised

legal, not factual, issues. We overrule the State’s first assignment of error.

B. The TCA preempts the State’s claims

{¶19} In its next assignment of error, the State argues that the trial court erred

when it granted judgment on its claims under the CSPA as preempted by the TCA. We

review the trial court’s grant of summary judgment, and issues of law, de novo. City of

Cincinnati v. State, 2022-Ohio-1019, ¶ 8 (1st Dist.).

1. Federal regulation of tobacco products

a. History

{¶20} In 1906, Congress passed the Pure Food and Drug Act, the nation’s “first

significant public health law,” which “prohibited the manufacture or interstate

shipment of adulterated or misbranded drugs [and] supplemented the protection for

consumers already provided by state regulation and common-law liability.” Wyeth v.

7 OHIO FIRST DISTRICT COURT OF APPEALS

Levine, 555 U.S. 555, 567 (2009); see Pub.L. No. 59-384, 34 Stat. 768 (2009). Due to

flaws in the law and “unsafe drugs and fraudulent marketing,” Congress enacted the

Federal Food, Drug, and Cosmetic Act (“FDCA”) in 1938 to supplant the Pure Food

and Drug Act. See id.; see also Zyla Life Sciences, LLC v. Wells Pharma of Houston,

LLC, 134 F.4th 326 (5th Cir. 2025).

{¶21} In 1995, the FDA grew concerned with the “availability and

attractiveness of tobacco products to young people.” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 126 (2000). The FDA tried to restrict the sale,

distribution, and marketing of tobacco products as regulations of “drugs” and

“devices” under the FDCA. Id. But the Supreme Court of the United States held that

the FDA lacked jurisdiction to regulate tobacco products under the FDCA. Id. at 125.

{¶22} Congress responded in 2009 with the TCA, 21 U.S.C. 387 et seq, which

amended the FDCA, abrogated Brown, and empowered the FDA to regulate tobacco

products. See Pub.L. No. 111-31, 123 Stat. 1776 (2009); see also Big Time Vapes, Inc.,

v. FDA 963 F.3d 436, 437, fn. 1 (5th Cir. 2001). When it enacted the TCA, Congress

found that the use of tobacco by children is “a pediatric disease of considerable

proportions.” Pub.L. No. 111-31, 123 Stat. at 1777. It found that “[t]obacco use is the

foremost preventable cause of premature death in America.” Id. And Congress was

concerned that Tobacco advertising targets minors and “often misleadingly portrays

the use of tobacco as socially acceptable and healthful to minors.” Id. In that regard,

the TCA sought to ensure that consumers were “better informed.” Id. The TCA was

meant to “authorize the [FDA] to set national standards controlling the manufacture

of tobacco products.” Id. at 1782. Under the TCA, the FDA has both power to enforce

the law and to oversee “the tobacco industry’s efforts to develop, introduce, and

promote less harmful tobacco products.” Id.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶23} Congress also noted that “[t]obacco products have been used to

facilitate and finance criminal activities both domestically and internationally.” Id. at

1779. So, Congress passed the TCA to “strengthen protections against illicit trade in

tobacco products.” See H.Rep. 111-58, 2009 USSCAN 468 (2009).

{¶24} All told, the FDA has “the power to regulate the manufacturing,

marketing, sale, and distribution of tobacco products.” FDA v. Wages & White Lion

Invests., LLC, 604 U.S. 542, 551 (2025).

{¶25} Initially, e-cigarettes were not considered “tobacco products” and

therefore were not within the scope of the TCA. See FDA v. R.J. Reynolds Vapor Co.,

606 U.S. 226, 228 (2025). But the dramatic rise of e-cigarette use by middle school,

high school, and college students across the country from 2011 to 2014 prompted the

FDA to act. Id.; see 81 Fed.Reg. 29028, 28984. In 2016, “the FDA issued a rule

deeming e-cigarettes and e-liquids to be ‘tobacco products,’” bringing e-cigarettes

under the FDA’s regulatory control. R.J. Reynolds Vapor Co. at 228 citing 81 Fed.Reg.

29028.

b. Front-end enforcement

{¶26} Under the TCA, manufacturers introducing e-cigarettes and other

tobacco products that were “not commercially marketed in the United States as of

February 15, 2007” must apply to the FDA for premarket authorization of the product.

See 21 U.S.C. 387j(a); see also 21 C.F.R. 1114.5. Premarket authorization acts as the

lynchpin for the FDA’s enforcement powers under the TCA for new tobacco products.

{¶27} As a front-end enforcement measure, premarket authorization allows

the FDA to assume a gatekeeping role when it reviews manufacturers’ premarket-

authorization applications seeking to introduce an e-cigarette into the market. See 21

C.F.R. 1114.5. All tobacco products seeking premarket authorization are subjected to

9 OHIO FIRST DISTRICT COURT OF APPEALS

“a rigorous scientific review process.” NJOY, LLC v. Imiracle (HK) Ltd., 760 F.

Supp.3d 1084, 1096 (S.D.Cal. 2024). In addition to the product itself, the premarket-

application review process requires the FDA to scrutinize the tobacco product’s labels

and marketing plans. See 21 U.S.C. 387j(b)(1); see also 21 C.F.R. 1114.7(a) and (f).

{¶28} A successful application will result in “an order that the new product

may be introduced or delivered for introduction into interstate commerce.” 21 U.S.C.

387j(c)(1)(A)(i). If the authorization application is denied, the FDA will “issue an order

that the new product may not be introduced or delivered for introduction into

interstate commerce.” 21 U.S.C. 387j(c)(1)(A)(ii).

c. Back-end enforcement

{¶29} The TCA prohibits the introduction of “adulterated” or “misbranded”

tobacco products into interstate commerce. 21 U.S.C. 311(a). A tobacco product

marketed without the TCA-required FDA authorization renders it adulterated. 21

U.S.C. 387b(6)(a). A tobacco product is mislabeled if it lacks the Origin Label. 21

U.S.C. 387c(a)(2)(D), citing 21 U.S.C. 387t(a). The TCA also prohibits the use of

misleading statements or representations, whether express or implied, that would lead

consumers to believe that the FDA approved, deemed safe, or endorsed a tobacco

product. 21 U.S.C. 331(tt)(1)-(4); see also 21 U.S.C. 387c(a)(1).

{¶30} For violations of the TCA, the FDA can seek injunctive relief or “stiff

penalties” provided by the FDCA. White Lion Invests., 604 U.S. at 555, citing 21 U.S.C.

333(a)(1) and (f)(9); see 21 U.S.C. 332. With some limited exceptions, all proceedings

to enforce any provision of the FDCA, including the TCA, “shall be by and in the name

of the United States.” 21 U.S.C. 337(a).

{¶31} Given the popularity of e-cigarettes, the FDA deferred enforcement of

the TCA’s premarket-authorization requirements until 2022. See R.J. Reynolds Vapor

10 OHIO FIRST DISTRICT COURT OF APPEALS

Co., 606 U.S. at 229. But public-health and medical-advocacy organizations

successfully sued the FDA in federal court under the theory that the agency’s deferred

enforcement violated the TCA and Administrative Procedure Act. See Am. Academy

of Pediatrics v. FDA, 379 F.Supp.3d 461, 492 (D.Md. 2019) (the “FDA’s across-the-

board suspension of the Tobacco Control Act’s premarket approval process, with

regard to applications, substantial equivalence reports, exemption requests, approval

and enforcement of these requirements, amounts to a rule amendment or revocation,

as it is inconsistent with the [TCA].”). In 2020, when that decision was pending on

appeal to the Fourth Circuit, the FDA coincidentally issued guidance advising e-

cigarette manufacturers that it began prioritizing enforcement of the TCA’s premarket

authorization. See Vapor Technology Assn. v. United States FDA, 977 F.3d 496, 500

(6th Cir. 2020).

{¶32} After a series of pandemic-related extensions and staggered application

deadlines, the FDA began reviewing e-cigarette premarket-authorization applications.

See Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey, 2025 U.S.

Dist. LEXIS 173845, *4 (W.D.Wis. Sep. 5, 2025). As of November 2025, the FDA had

reviewed more than 26 million e-cigarette premarket-authorization applications and

granted marketing orders for just 39 e-cigarettes. Id.

2. The State’s CSPA claims

{¶33} At issue are the State’s claims under the CSPA and sections of its

administrative code governing acts or trade practices in consumer transactions. The

CSPA “is a remedial law, designed to compensate for inadequate traditional consumer

remedies.” Frank v. WNB Group, 2019-Ohio-1687, ¶ 13 (1st Dist.). The State sought

injunctive relief and a declaratory judgment for alleged violations of R.C. 1345.02(A),

(B)(1) and (B)(4), and 1345.03(A) and (B)(1).

11 OHIO FIRST DISTRICT COURT OF APPEALS

a. Count 1: deceptive sale practices

{¶34} The State asserts in Count 1 of its complaint that Elevate Smoke

deceived its customers when it sold (1) unauthorized e-cigarettes, (2) unauthorized e-

cigarettes that bear the Origin Label, and (3) unauthorized e-cigarettes that bear the

Origin Label without warning consumers that, despite the Origin Label, the e-

cigarettes were not authorized for sale.

{¶35} The CSPA prohibits “unfair or deceptive act[s] in connection with a

consumer transaction” regardless of “whether it occurs before, during, or after the

transaction.” R.C. 1345.02(A). An act is “unfair” or “deceptive” under the CSPA if it

“‘mislead[s] consumers about the nature of the product they are receiving.’” Loury v.

Westside Auto. Group, 2022-Ohio-3673, ¶ 23 (8th Dist.), quoting Johnson v.

Microsoft Corp., 2005-Ohio-4985, ¶ 24. The test for a deceptive act “‘“‘is one of

fairness; the act need not rise to the level of fraud, negligence, or breach of contract’”’”

to violate the CSPA. Shumaker v. Hamilton Chevrolet Inc., 2009-Ohio-5263, ¶ 19 (4th

Dist.), quoting McPhillips v. United States Tennis Assn. Midwest, 2007-Ohio-3594,

¶ 27 (11th Dist.), quoting Chesnut v. Progressive Cas. Ins. Co., 2006-Ohio-2080, ¶ 23

(8th Dist.), quoting Mannix v. DCB Serv., Inc., 2004-Ohio-6672, ¶ 18 (2d Dist.).

{¶36} An act is deceptive when it suggests “[t]hat the subject of a consumer

transaction has sponsorship, approval, performance characteristics, accessories, uses,

or benefits that it does not have.” R.C. 1345.02(B)(1). An act is also deceptive if it

represents “[t]hat the subject of a consumer transaction is available to the consumer

for a reason that does not exist.” R.C. 1345.02(B)(4).

12 OHIO FIRST DISTRICT COURT OF APPEALS

b. Count 2: unconscionable sale practices

{¶37} The State’s second count alleged that Elevate Smoke committed

unconscionable sales acts when it sold unauthorized e-cigarettes and when it took

advantage of consumers’ inability to know that the e-cigarettes were unauthorized.

{¶38} The CPSA prohibits “unconscionable act[s] or practice[s] . . . before,

during, or after [a consumer] transaction.” R.C. 1345.03(A). An act is

“unconscionable” if the supplier “‘manipulat[es] a consumer’s understanding of the

nature of the transaction at issue.’” Loury at ¶ 23, quoting Johnson at ¶ 24. Among the

several factors for determining whether an act is unconscionable is if “the supplier has

knowingly taken advantage of the inability of the consumer to reasonably protect the

consumer’s interests because of the consumer’s . . . ignorance . . . or inability to

understand the language of an agreement.” R.C. 1345.03(B)(1).

c. Count 3: deceptive sale and advertisement practices

{¶39} In Count 3, the State alleged that Elevate Smoke committed a deceptive

sales act and violated an administrative rule governing advertisements when it failed

to disclose the e-cigarettes’ unauthorized statuses.

{¶40} The CSPA confers authority on the Ohio Attorney General to issue rules

defining acts and practices that violate the CSPA, protecting consumers from

suppliers, and encouraging fair consumer sales practices. See R.C. 1345.05(B) and

Adm.Code 109:4-3-01(A). Under Adm.Code 109:4-3-02(A)(1), a supplier commits a

deceptive act during a sale or offer if it “offer[s] in written or printed advertising or

promotional literature without stating clearly and conspicuously in close proximity to

the words stating the offer any material exclusions, reservations, limitations,

modifications, or conditions.” The supplier must disclose information in a manner

13 OHIO FIRST DISTRICT COURT OF APPEALS

that is “sufficiently specific so as to leave no reasonable probability that the terms of

the offer might be misunderstood.” Adm.Code 109:4-3-02(A)(1).

d. Count 4: unfair sale and advertisement practices

{¶41} The State’s final count alleged that Elevate Smoke committed an unfair

or deceptive sales act and violated an administrative rule governing advertisements by

representing to consumers that the e-cigarettes could be lawfully sold without having

a basis for that belief.

{¶42} A supplier commits a deceptive act or practice in a transaction if it

represents, claims, or asserts a fact that

would cause a reasonable consumer to believe such statements are true,

unless, at the time such representations, claims, or assertions are made,

the supplier possesses or relies upon a reasonable basis in fact such as

factual, objective, quantifiable, clinical or scientific data or other

competent and reliable evidence which substantiates such

representations, claims, or assertions of fact.

Adm.Code 109:4-3-10(A).

3. General preemption principles

{¶43} The Supremacy Clause of the United States Constitution provides that

“the Laws of the United States which shall be made in Pursuance thereof . . . shall be

the supreme Law of the Land.” U.S. Const., art. VI, cl. 2. Congress, under the

Supremacy Clause, “has the power to preempt state law.” Crosby v. Natl. Foreign

Trade Council, 530 U.S. 363, 372 (2000). Congress, by enacting legislation within the

bounds of its constitutional authority, has the power to “impose its will on the States.”

Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The Supremacy Clause preempts state

laws that “interfer[e] with, and [are] contrary to, an act of Congress passed in

14 OHIO FIRST DISTRICT COURT OF APPEALS

pursuance of the constitution.” Gibbons v. Ogden, 22 U.S. 1, 207 (1824). To the extent

that state and federal law conflicts, the state law is “‘without effect.’” Mut.

Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 479-480 (2013).

{¶44} In any preemption case, “‘the purpose of Congress is the ultimate touch-

stone.’” Medtronic, Inc., v. Lohr, 518 U.S. 470, 485 (1996), quoting Retail Clerks v.

Schermerhorn, 375 U.S. 96, 103 (1963). While Congress may impose its will on the

states under the Supremacy Clause, “‘Congress does not exercise lightly’ the

‘extraordinary power’ to ‘legislate in areas traditionally regulated by the States.’”

Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 13 (2013), quoting

Gregory at 460.

{¶45} The State’s claims implicate areas that traditionally fell under the State’s

authority via its police powers—tobacco, health, and consumer protection. See Florida

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 150 (1963); see also Hillsborough

Cnty., Florida v. Automated Med. Laboratories, Inc., 471 U.S. 707, 715 (1985); R.J.

Reynolds, 29 F.4th at 549. So “we start with the assumption that the historic police

powers of the States were not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947).

{¶46} Federal law may preempt state law or state action in one of three ways—

by “conflict,” “express,” or “field” preemption. Murphy v. NCAA, 584 U.S. 453, 477

(2018), quoting English v. General Elec. Co., 296 U.S. 72, 78-79 (1990). We address

the parties’ arguments in turn.

4. Express preemption

{¶47} The parties dispute whether the text of TCA’s preemption clause

expressly preempts the State’s causes of action.

15 OHIO FIRST DISTRICT COURT OF APPEALS

a. Express preemption defined

{¶48} Express preemption occurs when “Congress [] define[s] explicitly the

extent to which its enactments pre-empt state law.” English at 78. Congress need not

use any particular words or phrases to preempt state law. Coventry Health Care of

Missouri, Inc. v. Nevils, 581 U.S. 87, 99 (2017). When a statute contains a preemption

clause, “‘there is no need to infer congressional intent to pre-empt state laws from the

substantive provisions of the legislation.’” Cipollone v. Liggett Group, 505 U.S. 504,

517 (1992), quoting California Fed. S. & L. Assn. v. Guerra, 479 U.S. 272, 282 (1987).

{¶49} A court’s preemption analysis is, fundamentally, a matter of statutory

construction. See Assurance Wireless USA, L.P. v. Reynolds, 100 F.4th 1024, (9th Cir.

2024). Preemption provisions in a statute “impl[y] that matters beyond that reach are

not pre-empted.” Id. When Congress includes preempting language in a statute, “we

do not invoke any presumption against preemption but instead ‘focus on the plain

wording of the clause, which necessarily contains the best evidence of Congress’ pre-

emptive intent.’” Puerto Rico v. Franklin California Tax-Free Trust, 579 U.S. 115, 125

(2016), quoting Chamber of Commerce of United States of America v. Whiting, 563

U.S. 582, 594 (2011). When reading a statute, context matters. King v. Burwell, 576

U.S. 473, 475 (2015). So, we must “‘give effect, if possible, to every clause and word of

a statute.’” United States v. Menasche, 348 U.S. 528, 538-539 (1955), quoting

Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).

b. The TCA’s preemption framework

{¶50} We begin with the text of 21 U.S.C. 387p, the TCA’s “unique tripartite

preemption” provision. R.J. Reynolds, 29 F.4th at 547. Under 21 U.S.C. 387p, the TCA

“balances state and federal power over tobacco regulation” in three complementary

provisions. The provisions first broadly preserve state authority, then preempt state

16 OHIO FIRST DISTRICT COURT OF APPEALS

authority over some aspects of tobacco products, and then exempt other aspects of

tobacco regulation from the preemption clause. Id. In this respect, 21 U.S.C. 387p

represents an “explicit decision to preserve for the states a robust role in regulating,

and even banning, sales of tobacco products.” U.S. Smokeless Tobacco Mfg. Co. v. City

of New York, 708 F.3d 428, 436 (2d Cir. 2013).

i. TCA’s preservation clause reserves states’ role in regulating the sale of tobacco products

{¶51} The TCA preservation clause leaves state, local, and tribal governments

free to impose and enforce requirements that are more demanding than the TCA:

Except as provided in [the preemption clause], nothing in this

subchapter . . . shall be construed to limit the authority of . . . a State . .

. to enact, adopt, promulgate, and enforce any law, rule, regulation, or

other measure with respect to tobacco products that is in addition to, or

more stringent than, requirements established under this chapter,

including a law, rule, regulation, or other measure relating to or

prohibiting the sale, distribution, possession, exposure to, access to,

advertising and promotion of, or use of tobacco products by individuals

of any age, information reporting to the State, or measures relating to

fire safety standards for tobacco products.

21 U.S.C. 387p(a)(1).

ii. TCA’s preemption clause prohibits different or additional labeling requirements

{¶52} Next, the preemption clause “expressly overrides the preservation

clause in the case of any conflict between the two provision’s [sic] terms.” R.J.

Reynolds Tobacco Co., 29 F.4th at 551. The preemption clause prohibits state and local

governments from exercising certain types of tobacco regulation:

17 OHIO FIRST DISTRICT COURT OF APPEALS

No State or political subdivision of a State may establish or continue in

effect with respect to a tobacco product any requirement which is

different from, or in addition to, any requirement under the provisions

of this chapter relating to tobacco product standards, premarket review,

adulteration, branding, labeling, registration, good manufacturing

standards, or modified risk tobacco products.

21 U.S.C. 387p(a)(2)(A).

{¶53} Relevant here, the TCA’s preemption clause prevents state enforcement

of any “requirement” related to “labeling” that is different from, or in addition to, the

TCA’s labeling standards. A “requirement” is “a rule of law that must be obeyed.” Bates

v. Dow Agrosciences L.L.C., 544 U.S. 431, 445 (2005). The Bates Court addressed a

preemption clause contained in a federal pesticide statute, which prohibited states

from imposing or enforcing “‘any requirements for labeling or packaging in addition

to or different from’” federal law. Id. at 443, quoting 7 U.S.C. 136b(b). The Bates Court

explained that the word “requirements,” as used in preemption clauses, “reach[es]

beyond positive enactments” and includes even “common law” duties. Id.

{¶54} The FDCA defines “labeling” as “all labels and other written, printed, or

graphic matters (1) upon any article or any of its containers or wrappers, or (2)

accompanying such article.” 21 U.S.C. 321(m). A different or additional “requirement”

is preempted only if it “relate[s] to” the TCA’s labeling requirement. The phrase

“relating to” suggests that Congress intended “to pre-empt a large area of state law to

further its purpose.” Altria Group, Inc. v. Good, 555 U.S. 70, 85 (2008). Indeed,

“‘relating to’ has a broad[] scope . . . [and] is synonymous with ‘having a connection

with.’” Id. at 86, quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384

(1992).

18 OHIO FIRST DISTRICT COURT OF APPEALS

iii. TCA’s savings clause exempts requirements relating to tobacco-product sales from preemption

{¶55} The TCA’s preemption clause itself is limited by a savings clause, which

provides that the preemption clause “does not apply to requirements relating to the

sale, distribution, possession, information reporting to the State, exposure to, access

to, the advertising and promotion of, or use of, tobacco products by individuals of any

age, or relating to fire safety standards for tobacco products.” 21 U.S.C. 387p(a)(2)(B).

{¶56} The savings clause “leav[es] adequate room for state [] law to operate.”

Geier v. Am. Honda Motor Co., 529 U.S. 861, 868 (2000). Of course, the preemption

and savings clauses must be read in tandem. Id. And as a general rule, savings clauses

must not be read so broadly to “upset the careful regulatory scheme established by

federal law.” United States v. Locke, 529 U.S. 89, 106 (2000).

{¶57} All told, the TCA shifted authority over tobacco manufacturing and

marketing to the federal government, “while still preserving states and localities’ broad

power over regulation of the sales of those products.” R.J. Reynolds Tobacco, 29 F.4th

at 555; see U.S. Smokeless, 708 F.3d at 435. As such, a state requirement that falls

under the TCA’s preemption clause is not preempted if it relates to an aspect of a

tobacco product identified by the savings clause. See U.S. Smokeless at 435 (holding

that an ordinance limiting flavored tobacco products sales, construed as a “product

standard” subject to the preemption clause, is a sales requirement under the savings

clause and therefore not preempted by the TCA).

c. TCA’s savings clause exempts some of the State’s claims from express preemption

{¶58} Some of the State’s claims in Counts 1 and 3 would impose additional

labeling requirements on tobacco products. The State’s claims in those counts are

based on the allegedly misleading nature of the Origin Label and Elevate Smoke’s

19 OHIO FIRST DISTRICT COURT OF APPEALS

failure to warn consumers that, despite the Origin Label allegedly suggesting

otherwise, the FDA has not authorized those e-cigarettes for sale.

{¶59} One court has ruled that claims against a retailer for failing to warn

consumers about a tobacco product’s authorization status amounts to “a labeling duty

‘different from, or in addition to,’ the [TCA’s] requirements.” Yimam v. Mylé Vape,

Inc., 2020 D.C. Super. LEXIS *7, 11 (D.C. June 11, 2020). And just last year, a federal

district court ruled that claims under California’s consumer-protection law, based on

the allegedly misleading Origin Label, were preempted because “what is, and what is

not, included on the product’s label” was the basis of liability. NJOY, LLC v. Imiracle

(HK) Ltd., 760 F. Supp.3d 1084, 1095-1096 (S.D.Cal. 2024).

{¶60} To the extent that the State’s claims would require warnings in the form

of written or graphic material accompanying the e-cigarettes, those warnings would

fall within the scope of the FDCA’s definition of labeling. But because those warnings

would be required at the retail stage, the State’s claims are “related to” the sale of

tobacco products and fall within the scope of the savings clause. See 21 U.S.C.

387p(a)(2)(B). The savings clause exempts the State’s claims from the preemption

clause’s reach.

{¶61} In sum, the State’s claims under the CSPA that would require

accompanying written or graphic materials at the point of sale to counteract the

allegedly misleading Origin Label fall within the scope of the TCA’s savings clause and

are not expressly preempted by federal law. But that does not end the inquiry because

“neither an express pre-emption provision nor a saving clause ‘bars the ordinary

working of conflict pre-emption principles.’” Buckman Co. v. Plaintiffs’ Legal Commt.,

531 U.S. 341, 352 (2001), quoting Geier, 529 U.S. at 869.

20 OHIO FIRST DISTRICT COURT OF APPEALS

5. The State claims conflict with the TCA

{¶62} Even if a federal statute does not expressly preempt a state law, federal

law may implicitly preempt a state law “through ‘field’ pre-emption or ‘conflict’ pre-

emption.” Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377 (2015).

a. Conflict preemption, defined

{¶63} When state and federal laws conflict, state law is preempted. Oneok at

377. But federal law does not preempt state law “simply because in a hypothetical

situation a private party’s compliance with the [state] statute might cause him to

violate the [federal] laws.” Rice v. Norman Williams Co., 458 U.S. 654, 659 (1982).

Instead, conflicts exist “where ‘compliance with both state and federal law is

impossible.’” Oneok at 377, quoting California v. ARC Am. Corp., 490 U.S. 93, 100

(1989).

{¶64} In “impossibility” cases, courts ask “whether the private party could

independently do under federal law what state law requires of it.” Pliva, Inc. v.

Mensing, 564 U.S. 604, 619 (2011). A state law conflicts with federal law, and is

therefore preempted, when compliance with state law would result in a per se violation

of federal law. Rice at 458.

b. Buckman and implied preemption under the FDCA

{¶65} The trial court ruled that the FDCA preempts the State’s claims under

Buckman, because the State’s claims “would not exist in the absence of the FDCA.”

The parties dispute whether and how Buckman applies to the State’s claims. We note

that after the parties’ oral argument in this appeal, the Fifth District released State ex

rel. Atty. Gen. Dave Yost v. Cent. Tobacco & Stuff Inc., 2025-Ohio-4613 (5th Dist.),

which held that Buckman preempted claims against another tobacco retailer that are

identical to the CSPA claims in this case.

21 OHIO FIRST DISTRICT COURT OF APPEALS

{¶66} In Buckman, the Supreme Court of the United States considered

whether the FDCA preempted state-law claims alleging that, but for

misrepresentations in an application for premarket authorization of orthopedic bone

screws, the screws would not have been approved, and the screws would not have

injured the patients. Buckman, 531 U.S. at 343. The Buckman Court held that the

state-law claims were implicitly preempted by the FDCA and the Medical Device

Amendment of 1976, reasoning that “[s]tate fraud-on-the-FDA claims” encroached on

the FDA’s responsibility to police fraud and those claims “exist solely by virtue of the

FDCA disclosure requirements.” Id. at 350-353. Plus, the FDCA provided that, except

for state enforcement of some food-labeling standards, “all such proceedings for the

enforcement, or to restrain violations, of [the FDCA] shall be by and in the name of

the United States.” 21 U.S.C. 337(a). The Buckman Court considered that statutory

language to be “clear evidence that Congress intended that the MDA be enforced

exclusively by the Federal Government.” Buckman at 352.

{¶67} We recognize that some aspects of the instant case are distinguishable

from Buckman. First, a presumption against preemption applies because “the history

of tobacco regulation is, until recently, one of state and local action.” R.J. Reynolds, 29

F.4th at 549; see Austin v. Tennessee, 179 U.S. 343, 348 (1900). So unlike the parties in

Buckman, Elevate Smoke must overcome that presumption against preemption. See

Buckman at 348 (“[N]o presumption against pre-emption obtains in this case.”).

{¶68} Second, the State’s CSPA claims allege that Elevate Smoke deceived

consumers, not the FDA. See Lefaivre v. KV Pharmaceutical Co., 636 F.3d 935, 944

(8th Cir. 2011) (“the present case is distinguishable from Buckman because Lefaivre’s

state-law claims are not fraud-on-the-FDA claims, as they ‘focus on [harm] that is

allegedly perpetrated against [consumers] rather than the FDA.’”).

22 OHIO FIRST DISTRICT COURT OF APPEALS

{¶69} Third, the TCA’s preservation clause “explicitly preserves local authority

to enact ‘more stringent’ regulations than the TCA” in some aspects of tobacco

products. R.J. Reynolds Tobacco Co., 29 F.4th at 548; see Wisconsinites, 2025 U.S.

Dist. LEXIS 173845, at *15.

{¶70} Fourth, the Buckman plaintiffs were private litigants. The State

emphasizes this fact while pointing out the Tenth Amendment to the United States

Constitution reserves all powers not delegated to the federal government to the states.

c. The State’s claims are preempted

{¶71} Despite the differences between this case and Buckman, we hold that

some of the State’s claims are implicitly preempted under Buckman and 21 U.S.C.

337(a). While state, local, and tribal governments may impose stricter tobacco

standards, the federal government alone can enforce the FDCA. See 21 U.S.C. 337(a).

{¶72} In the complaint, the State alleges that any e-cigarette not authorized

by the FDA is “illegal.” The State claimed, in Counts 1 and 2, that Elevate Smoke

committed deceptive and unconscionable sales acts “by offering for sale and selling

illegal [e-cigarettes].” But whether Elevate Smoke’s conduct was unconscionable or

deceptive depends solely on federal law. The TCA dictates that premarket-

authorization review is required for all new tobacco products. See 21 U.S.C.

387j(a)(2)(A). Any tobacco product that must have premarket review and does not

have a marketing order is an “adulterated” tobacco product. 21 U.S.C. 387b(6)(A). And

21 U.S.C. 331(c) prohibits receiving and selling adulterated tobacco products in

interstate commerce. In substance, by seeking to create civil liability for Elevate

Smoke’s sale of unauthorized e-cigarettes, the State seeks to enforce the TCA. These

claims in Counts 1 and 2 are implicitly preempted.

23 OHIO FIRST DISTRICT COURT OF APPEALS

{¶73} In Count 2, the State alleged that Elevate Smoke committed an

unconscionable act by “knowingly taking advantage of the inability of consumers to

reasonably protect their interests as prospective consumers do not know that the

products [Elevate Smoke] offered for sale and sold were not authorized or legal to be

sold in the United States” because of the products’ Origin Label. And Count 4 sought

to create civil liability based on misrepresentations made by Elevate Smoke to the

consumer. But it is federal law—the FDCA—that prohibits any “express or implied

statement or representation directed to consumers with respect to a tobacco product,

in a label or labeling . . . that either conveys, or misleads or would mislead consumers

into believing, that . . . the product is approved by the [FDA].” 21 U.S.C. 331(tt)(1).

Counts 2 and 4 are therefore implicitly preempted.

{¶74} The State’s remaining claims contained in Counts 1 and 3 are predicated

on Elevate Smoke’s failure to warn consumers that, despite the presence of the Origin

Label, the e-cigarettes are not authorized for sale. But were Elevate Smoke to alter the

products’ labels to comply with the CSPA, this conduct would amount to a per se

violation of the TCA. All labels, packaging, and shipping containers of new tobacco

products must state “sale only allowed in the United States.” 21 U.S.C. 387t(a)(1).

While the State questions whether unauthorized tobacco products must display the

Origin Label, premarket-authorization applications must include samples of

packaging and all warning labels required by the TCA. 21 C.F.R. 1114(f)(1).

{¶75} The State’s complaint does not specify, precisely, how Elevate Smoke

must warn consumers that the products are unauthorized, but we read the complaint

to require, at a minimum, some supplementation, if not supplantation, of the Origin

Label. But the FDCA prohibits any “alteration . . . or removal of the whole or any part

of the labeling of . . . [a] tobacco product” at the retail stage that would result in a

24 OHIO FIRST DISTRICT COURT OF APPEALS

misbranded tobacco product. 21 U.S.C. 331(k). Under federal law, an e-cigarette is

considered “misbranded” unless it bears, among other required labels, the Origin

Label. See 21 U.S.C. 387c. Moreover, an e-cigarette is “misbranded” if a label required

by the TCA, like the Origin Label, “is not prominently placed . . . with such

conspicuousness.” 21 U.S.C. 387c. Elevate Smoke’s compliance with both the State’s

theory of liability under the CSPA and the TCA’s label requirement is impossible.2 The

preemption doctrine does not force an actor faced with competing state and federal

laws “to cease acting altogether in order to avoid liability.” Bartlett, 570 U.S. at 488.

d. Ohio’s CSPA versus other states’ tobacco laws

{¶76} The State relies on two recent federal district court cases addressing the

preemptive effect of the TCA on Wisconsin and North Carolina laws. See

Wisconsinites, 2025 U.S. Dist. LEXIS 173845; see also

Vapor Technology Assn. v. Wooten, 2025 U.S. Dist. LEXIS 123020 (E.D.N.C. June

27, 2025).

{¶77} The Wisconsin and North Carolina statutory schemes at issue in these

cases created state directories of tobacco products eligible for sale in those states. See

Wis.Stat.Ann. 995.15(6); see also N.C.Gen.Stat. 143B-245.12. Under both laws, a

tobacco product could be placed on those state directories if the manufacturer or

retailer certified certain information about the tobacco product’s premarket-

2 Although Elevate Smoke did not argue this point in its brief, federal law may also preempt a state

law that “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” California v. ARC Am. Corp., 490 U.S. 93, 101 (1989), quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Here, the State’s claims, based on the alleged deception created by the Origin Label, would frustrate the TCA’s purpose. The TCA imposes strict labeling requirements to limit consumer confusion and to combat illicit trade of tobacco products. See Pub.L. No. 111-31, 123 Stat. at 1782. Again, if the State were to proceed with its CSPA claims, e- cigarette sellers like Elevate Smoke would have to choose between complying with the state law or the TCA’s labeling requirements. Compliance with the CSPA would weaken Congress’s attempt to prevent illicit trade and frustrate the stated purpose of the TCA.

25 OHIO FIRST DISTRICT COURT OF APPEALS

authorization application to the state. See Wis.Stat.Ann. 995.15(2); see also

N.C.Gen.Stat. 143B-245.11(a)(1)-(3). The Wisconsinites and Vapor Technology courts

considered these certification requirements to be additional sales requirements under

the savings clause. See Wisconsinites at *19; see also Vapor Technology at *14.

{¶78} As for implied preemption, those statutes were not veiled attempts at

enforcing the TCA. A retailer or manufacturer could not be held liable under either

Wisconsin or North Carolina law for noncompliance with the TCA’s premarket-

authorization scheme. See Wisconsinites at *19 (“[A] violation of the FDCA is not itself

actionable basis for the [state] to initiate proceedings against the producers,

distributors, retailers and customers of tobacco producers.”). The Wisconsinites and

Vapor Technology courts emphasized this point, as each state directory included

authorized and unauthorized tobacco products. See Wisconsinites at *19 (“[A]ction

may only be initiated by the sale of a product not on the Wisconsin directory, which

includes TCA compliant and noncompliant products.”); see also Vapor Technology at

*14 (“Some products on the directory are compliant with the []TCA. Others are not.”).

Rather, retailers faced penalties in North Carolina and Wisconsin for sales of tobacco

products that are not on the state directory. See Wis.Stat.Ann. 995.15(9); see also

N.C.Gen.Stat. 14-313(h)(1). These statutes survived Buckman and 21 U.S.C. 337(a)

because enforcement turned on violations of state law, not the TCA.

{¶79} But here, the State’s consumer-protection claims would cease to exist

without the federal tobacco regulations. As discussed, many of the State’s claims are,

in substance, claims for TCA violations. And compliance with the remainder of the

State’s claims would constitute per se violations of the TCA’s labeling requirements.

26 OHIO FIRST DISTRICT COURT OF APPEALS

{¶80} Therefore, we hold that the State’s claims are preempted by the TCA.

The trial court appropriately granted summary judgment to Elevate Smoke. We

overrule the State’s second assignment of error.

C. Elevate Smoke’s motion for attorney fees under App.R. 23

{¶81} In its brief, Elevate Smoke requested expenses and attorney fees

because, in its view, the State’s appeal centered on the incredible and frivolous position

that the State has the authority to enforce the FDCA under 21 U.S.C. 337(a).

{¶82} We may require parties to pay reasonable attorney fees and costs if we

find that the appeal is frivolous. See App.R. 23. An appeal is frivolous under App.R. 23

when it presents no “‘reasonable question for review.’” Stewart v. Stewart, 2025-

Ohio-1635, ¶ 59 (1st Dist.), quoting Burdge v. Supervalu Holdings, Inc., 2007-Ohio-

1318, ¶ 22 (1st Dist.).

{¶83} We hold that the State’s appeal presents reasonable questions for review

and we deny Elevate Smoke’s request for costs and attorney fees.

III. Conclusion

{¶84} We overrule the State’s assignments of error and affirm the trial court’s

judgment. Further, we deny Elevate Smoke’s motion for attorney fees and costs.

Judgment affirmed.

KINSLEY, P.J., and NESTOR, J., concur.