A Washington federal judge ruled (PDF) Wednesday afternoon that the manufacturer of Zig-Zag brand cigar wrappers can sue the District of Columbia over a new ban on wrapper sales, but denied the company's request for a preliminary injunction.
U.S. District Judge Robert Wilkins found that while Kentucky-based National Tobacco Co., LP had standing to sue, he expressed doubts about the company's ability to survive a motion for summary judgment. He dismissed several claims, including an allegation that the law conflicted with federal law, but allowed others dealing with the structure of the statute to stand.
National Tobacco sued the District in mid-February in U.S. District Court for the District of Columbia, claiming that the city had passed an unlawful ban on the sale of cigar wrappers that was in conflict with federal law.
The Prohibition Against Selling Tobacco Products to Minors Amendment Act of 2010 doesn’t define cigar wrappers as drug paraphernalia when sold at a specialty store. In another section of the law, however, the city bans the sale of cigar wrappers outright.
The city moved to dismiss the lawsuit, while National Tobacco asked for a preliminary injunction. Wilkins dismissed some, but not all, of the claims and denied the request for a preliminary injunction. National Tobacco’s attorney, Raymond Castillo of Shaub, Ahmuty, Citrin & Spratt in New York, did not immediately return a request for comment. A spokesman for the city’s Office of the Attorney General said they are reviewing the decision.
The city had argued that National Tobacco, as the manufacturer and not the direct seller, lacked standing to sue. Wilkins disagreed, writing that the company had made enough allegations at this stage that it would be hurt by the ban. He added, however, that “these allegations will likely be insufficient to satisfy NTC’s higher burden at summary judgment.”
Wilkins denied National Tobacco’s request for a preliminary injunction to stop the law from being enforced. He wrote that National Tobacco had failed to show it was at risk of “irreparable harm,” since it hadn’t claimed that any losses in the meantime were “causing extreme hardship” and could always re-establish any lost business arrangements if the ban is deemed unlawful.
In dismissing part of the lawsuit, Wilkins found that National Tobacco had failed to show that the ban conflicts with federal law. Although there are regulations governing the sale of cigar wrappers, Wilkins wrote that there is no evidence “that Congress requires that cigar wrappers be sold in every jurisdiction.”
Wilkins did find, however, that National Tobacco had made a legitimate claim that the city’s law is unlawfully vague, since versions differ depending on the source.