MMA Group 1 Inc. et al v. Sunday, Jr. et al

OCR transcription for search; preserved printed pages are authoritative

Case 3:26-cv-01385-JKM Document 49 _ Filed 10/14/26 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MMA GROUP 1 INC., d/b/a : No. 3:26cv1385
Tobacco Hut State College Inc., et al., :
Plaintiffs : (Judge Munley)
Vv. :

DAVID W. SUNDAY, JR., in his :
official capacity as Attorney General :
of the Commonwealth of
Pennsylvania; and PATRICK M.
BROWNE, in his official capacity
as Secretary of Revenue of the
Commonwealth of Pennsylvania,
Defendants

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MEMORANDUM

Plaintiffs sell electronic nicotine delivery systems (“ENDS”), which are
better known as e-cigarettes or vapes. Vapes contain nicotine. Nicotine is an
addictive chemical. The United States Food and Drug Administration (“FDA”)
regulates nicotine vapes as a tobacco product. FDA authority comes from
provisions in the Family Smoking Prevention and Tobacco Control Act (“TCA”)
and the Federal Food, Drug, and Cosmetic Act (“FDCA”). The FDA has decided
to take a particular enforcement approach to nicotine vapes that lack federal
approval. This approach has allowed retailers to sell such products in their

Pennsylvania stores.

Case 3:26-cv-01385-JKM Document 49 _ Filed 10/14/26 Page 2 of 34

In response, the Commonwealth enacted Act 57 of 2025 last December
and the law is codified at 72 PA. STAT. § 206-I. Act 57 prohibits the retail sale of
nicotine vapes that are not listed in an ENDS directory maintained by the state
Attorney General. A product may be listed in the directory if its manufacturer
certifies that the product has federal marketing authorization or falls within a
category of products still under federal review.

Plaintiffs make and sell vapes that are not federally authorized and are thus
ineligible for listing in the state ENDS directory. These proprietors contend that if
the Act 57 enforcement provisions are allowed to take full effect, it will be a
disaster for their businesses. Per the plaintiffs, the law will cause them to shutter
their stores and lay off workers across the state.

To fend off this outcome, plaintiffs filed this action seeking to invalidate
portions of Act 57 before state authorities come in and seize unlisted nicotine
vapes as contraband. They assert that Act 57 is preempted by the TCA and the
FDCA.' Plaintiffs request a declaration that seven provisions of Act 57 are
unconstitutional. They also request an order enjoining Pennsylvania’s Attorney
General and Revenue Secretary from implementing and enforcing these

provisions.

1 The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 since it arises under
the Constitution and laws of the United States.

2

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After careful consideration, no such declaration or injunction will be issued
in this case. Act 57 is not preempted. Summary judgment will be entered in
favor of the defendants on this issue for the reasons that follow.

Background
1. FDCA and TCA Provisions
For much of our history, tobacco products were regulated by the states and

by local governments. R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29

F.4th 542, 547 (9th Cir. 2022). Between 1965 and 2000, Congress enacted
various statutes concerning warning requirements, advertising limits, and age

restrictions. FDA v. Wages & White Lion Invs., LLC, 604 U.S. 542, 550 (2025).

When the FDA attempted to assert jurisdiction over tobacco products by
regulation in 1996, the United States Supreme Court rejected that effort as
beyond the statutory authority of the FDCA. Id. at 551 (citation omitted).

In 2009, the TCA changed that. Id. Under its amendments to the FDCA,

tee

the FDA was granted regulatory authority over cigarettes and “any other tobacco
products’ that the FDA ‘by regulation deems’ to meet the definition of a tobacco

product.” Id. (quoting 21 U.S.C. § 387a(b)).

2 These statutes “never preempted state and localities' traditional power to restrict or ban sales
of tobacco products.” County of Los Angeles, 29 F.4th at 548—49 (citing Graham v. R.J.
Reynolds Tobacco Co., 857 F.3d 1169, 1186-87 (11th Cir. 2017) (en banc)).

3

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The TCA prohibits manufacturers “from marketing any ‘new tobacco
product’ without FDA authorization.” Id. (quoting 21 U.S.C. § 387j(a)(2)(A)). The
law requires manufacturers of “new tobacco products” to submit Premarket
Tobacco Product Applications (“PMTAs”) and receive authorization from the FDA

before introducing those products into the market. Avail Vapor, LLC v. FDA, 55

F.4th 409, 414 (4th Cir. 2022) (citing 21 U.S.C. § 387j(a)(2)(A)). After receiving a
PMTA from a manufacturer, the FDA issues either a marketing granted order or a
marketing denied order under the mechanics of the statute and implementing
regulations. 21 U.S.C. § 387j(c); 21 C.F.R. §§ 1114.5, 1114.31. Companies that
sell “new tobacco products” without authorization are subject to “stiff penalties”

ranging from civil monetary penalties to imprisonment. Wages & White Lion

Invs., 604 U.S. at 555 (citing 21 U.S.C. §§ 331(a), 333(a)(1), (f)(9)).

Although “[t]he TCA’s reach was broad,” the FDA did not initially classify
nicotine-containing vapes as a “tobacco product” subject to the FDCA. Id. at
551, 555. In 2016, however, the FDA issued regulations interpreting “tobacco
product” to include e-cigarettes containing nicotine derived from tobacco. Id. at
555 (citing 81 Fed. Reg. 29028 (2016)). In 2022, Congress amended the TCA to
clarify that “tobacco product” also includes e-cigarettes containing nicotine
derived from synthetic, non-tobacco sources. Pub. L. No. 117-103, § 111, 136

Stat. 49, 789 (2022) (codified at 21 U.S.C. § 321(rr)(1)). That means nicotine e-

4

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cigarettes and vapes require PMTA review and FDA authorization before they
may be lawfully marketed. Avail Vapor, 55 F.4th at 414.

That history aside, this case is about the states, their police powers, carve-
outs to federal statutes, and cooperative federalism. In short, the TCA
“authorized the FDA to regulate tobacco products and expressly preempted
some contrary state or local regulations, while also expressly preserving and
saving from preemption other state and local regulatory authority over tobacco.”

County of Los Angeles, 29 F.4th at 547-48. Put another way, Congress

“expressly sought to address the legality of state regulation of tobacco products
through a carefully balanced preemption scheme consisting of a preservation

clause, a preemption clause, and a savings clause.” Spencer v. Vapor Tech.

Ass'n, No. SC-2025-0800, So. 3d_, 2026 WL 1902082, at *4 (Ala. July 2,
2026) (citing 21 U.S.C. § 387p). The TCA’s “unique preemption structure gives
the federal government exclusive power to set ‘tobacco product standards,’ while
preserving state, local, and tribal authority to regulate or ban sales of those

products altogether.” County of Los Angeles, 29 F.4th at 552.

Recall the stiff federal penalties mentioned above. Despite the possibility
of monetary penalties or a federal jail sentence, “[uJnauthorized ENDS products”
like vapes and e-cigarettes “are widely available because the FDA has adopted a

deferred, case-by-case enforcement regime[.]’ lowans for Alts. to Smoking &

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Tobacco, Inc. v. Mosiman, 183 F.4th 1040, 1046 (8th Cir. 2026). That situation

has caused the states to enact legislation creating product registry laws, which,
per plaintiffs, conflicts with a provision of the FDCA. That provision states: “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).

2. Act 57 of 2025

At least 16 states now have some form of e-cigarette registry or ENDS
directory law.* Act 57 is one of those laws. 72 PA. STAT. § 206-I.
Pennsylvania’s General Assembly intended Act 57 “to establish effective tools for
use by the [revenue] department and the Attorney General to prevent and deter
the sale of electronic cigarettes that contain nicotine in the Commonwealth which
have not been certified[.]” § 206-I (a).

Certification means that “every manufacturer” of nicotine vapes sold for
retail sale must “execute and deliver to the Attorney General . . . under penalty of
perjury” a form indicating that the manufacturer “is compliant with this section,

agrees to continue to comply with this section, [and] has posted [a] surety

3 See ALA. CODE § 28-11-17.1 (2025); FLA. STAT. § 569.311 (2024); lowA CODE § 453A.52
(2025); Ky. REV. STAT. ANN. § 438.308 (West 2025); Miss. CODE ANN. §§ 27-69-1, ef seq.; NEB.
Rev. STAT. § 77-4011.01 (2024); N.C. GEN. STAT. § 143B-245.12 (2025); OKLA. STAT. tit. 63 §
1-229.35 (2022); S.C. CODE. ANN. § 44-95-65 (2026); TENN. CODE ANN. § 67-4-1034 (2025);
UTAH CODE ANN. § 59-14-810 (West 2026); VA. CODE ANN. § 59.1-293.15 (2026); Wis. STAT.
ANN. § 995.15 (2025).

6

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bond[.]"4 § 206-I (b)(1). “[F]or each electronic cigarette that contains nicotine”
the manufacturer must also annually certify that:

1) It has received a marketing granted order from the FDA in accordance
with 21 U.S.C. § 387):

2) It has submitted a timely PMTA to the FDA under 21 U.S.C. § 387] “and
the application either remains under review by the FDA or has received
a denial order that has been and remains stayed by the FDA or court
order, rescinded by the FDA, or vacated by a court;” or

3) It was not required to submit a PMTA because the product “reflects

changes to the name, brand style or packaging of an electronic cigarette
that contains nicotine that is covered under” the above provisions.

§ 206-I (b)(1)(i)—(iii).

The certification requirement contains an ongoing obligation tied to federal
law and regulations. § 206-I (b)(2). That is, to the extent that 21 U.S.C. § 387] is
amended, the federal government issues subsequent regulations, official
guidance, or a formal policy statement changing compliance requirements for
nicotine vapes, each manufacturer “shall submit documentation to the Attorney
General substantiating compliance with the new Federal requirements or
standards within 30 days of the date compliance is mandated.” Id. Additionally,
a manufacturer must notify the Attorney General within 30 days of “any material

change to the certification form, including the issuance or denial of a marketing

4 Under Act 57, manufacturers seeking certification must submit a surety bond of at least
$50,000. 72 PA. STAT. § 206-I (k)(1).

7

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order by the FDA under 21 U.S.C. § 387}, or any other order or action by the FDA
or any court that affects the ability of the [nicotine vape] to be introduced or
delivered into interstate commerce for commercial distribution in the United
States.” § 206-I (f).

Annual certification must be accompanied by the marketing granted order
issued by the FDA, the FDA acceptance letter for a timely-filed PMTA, or a
document issued by the FDA or a court confirming that the PMTA has resulted in
a denial order that “has been and remains stayed by the FDA or court order,
rescinded by the FDA or vacated by a court.” § 206-I (d)(1). Annual certification
also comes with a fee: $2,000 for each brand family and $200 for each brand
style during the first year of certification and an annual payment thereafter of
$1,000 for each brand family and $100 for each brand style. § 206-I (d)(2). The
state Attorney General is also empowered to require e-cigarette manufacturers to
submit additional evidence to verify compliance with Act 57, such as samples,
sales invoices, product SKUs, federal application records, and sworn affidavits.

§ 206-I (h).

Act 57 outlines specific grounds under which the state Attorney General
can deny a manufacturer’s directory certification. § 206-I (j). These disqualifying
factors include selling uncertified products in the state, involuntary removal from

another state’s ENDS directory, denial of listing in another state’s ENDS

8

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directory, failing to provide required compliance information, violating federal
nicotine packaging standards, or holding certain criminal convictions.

§ 206-I (j)(1)-(6). The law also provides for a notice and opportunity to cure for
manufacturers before the state Attorney General may deny certification.

§ 206-I (/).

Act 57 had an effective date of February 20, 2026. 2025 Pa. Legis. Serv.
Act 2025-57 (H.B. 1425) (West). Under the statute, the state Attorney General is
responsible for publishing a directory on the office’s website listing “all
manufacturers of electronic cigarettes that contain nicotine, brand names,
categories, such as e-liquid, e-liquid cartridge, e-liquid pod or disposable, product
names and flavors for which certification forms have been submitted and
approved by the Attorney General[.]” § 206-I (g). The directory was first
published on June 20, 2026. (Doc. 34, Pl. SOF, {] 84).

Act 57 contains a prohibition subsection. 72 PA. STAT. § 206-I (n). Under
that subsection, e-cigarettes may not be sold at retail 120 days after the effective
date of the statute or 120 days after the directory is published, whichever is later,
unless that product is included in the Attorney General’s directory. Id. This
subsection includes sell-through provisions. That is, each retailer of e-cigarettes
is afforded 120 days from the date of directory publication to sell products that

were in its inventory and not included in the directory. § 206-I (n)(1). Otherwise,

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these products must be removed from their inventory. Id. Similarly, the statute
may be construed to afford wholesalers with 120 days from the date of directory
publication to remove products intended for retail sale in the Commonwealth from
their inventories if those products are not in the directory. See § 206-I (n)(2).

After the sell-through period, unlisted nicotine vapes are considered
contraband and are subject to seizure, forfeiture, and destruction by the state.°
§ 206-I (n)(3). Furthermore, retailers, wholesalers, or importers who sell unlisted
nicotine vapes are subject to a wide array of other enforcement actions, such as
civil penalties for each product. § 206-I (0). Violations of this section are also
deemed to be “an unfair or deceptive act or practice” in violation of
Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. § 206-I
(0)(6).

Additionally, Act 57 provides that each retailer, wholesaler, importer, or
similar intermediary that sells or distributes nicotine vapes is subject to
unannounced compliance checks. § 206-I (s). The law further empowers the
state Attorney General’s office to inspect the books, records, and stock on any

Pennsylvania premises where vapes are stored and sold. § 206-I (q).

5 Similarly, products removed from the directory are afforded a 30-day sell-through period
before they are subject to seizure, forfeiture, and destruction. 72 PA. STAT. § 206-I (m).

10

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3. Tobacco Hut, Nova Distro, and 101 Distributors

Plaintiffs are corporations or LLCs engaged in the manufacture, wholesale
distribution, and retail sale of e-cigarettes in Pennsylvania without marketing
granting orders or pending PMTAs. (Doc. 34, Pl. SOF, | 64). Most of the plaintiff
entities operate Tobacco Hut retail locations. Tobacco Hut employs between
150-180 full-time employees. Id. 67. Sixty percent of Tobacco Hut's profits
are derived from the sale of e-cigarettes. Id. J 74. As of June 2, 2026, Tobacco
Hut had $2,000,000 worth of product subject to seizure under Act 57. Id. {| 97.

Nova Distro and 101 Distributors are also plaintiffs in this case. Nova
Distro makes and distributes vapes to Tobacco Hut locations.® (Doc. 26, Hearing
Tr., R. Saleh, 34:23-36:6). Tobacco Hut retail locations and Nova Distro are
connected family businesses. Id. Nova Distro makes a nicotine vape called the
Hut Bar. Id. Tobacco Hut sells the Hut Bar. Id., 41:10-21. It is not FDA
approved. Id. Despite the lack of approval, Tobacco Hut has been selling the
Hut Bar for two to three years. Id., 42:5-11. Tobacco Hut locations also sell
between 200-300 different kinds of nicotine vapes that are not FDA approved.

Id., 58:10-15.

8 Nova Distro is also involved in a lawsuit challenging the ENDS directory law in Virginia. See
NOVA Distro, Inc. v. Miyares, No. 3:25CV857 (DJN), 2025 WL 3680321 (E.D. Va. Dec. 18,
2025), appeal docketed sub nom., NOVA Distro, Inc. v. Jones, No. 26-1033 (4th Cir. Jan. 9,
2026). That matter is currently pending before the Fourth Circuit.

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101 Distributors is a wholesale distributor, which supplies nicotine vapes to
the Tobacco Hut retail stores and other convenience stores and smoke shops.
(Doc. 26, Hearing Tr., K. Patel, 59:19-60:16). Forty percent of 101 Distributors’
profits are derived from the sale of vapes and e-cigarettes. (Doc. 34, Pl. SOF
q 75). It would take 101 Distributors between eight months to one year to sell its
inventory of e-cigarettes. Id. 99. 101 Distributors distributes nicotine vapes
that have not been approved by the FDA along with ones that have been
approved. (Doc. 26, Hearing Tr., K. Patel, 63:24-64:19). Per one of its owners,
the vapes that lack FDA approval are more popular. Id., 59:23-60:1, 63:24—
64:19.

4. Procedural History

Plaintiffs initiated this action on May 20, 2026. (Doc. 1). Counts | and II of
the complaint advance express and implied preemption theories challenging 72
Pa. STAT. § 206-I (m), (n), (0), (q), (r), and (s) (“enforcement provisions’”).’ (Doc.

1, JM] 198, 229-242).

? Count Ill asserts a substantive due process claim under 42 U.S.C. § 1983 on behalf of
Plaintiff Nova Distro, Inc. against David W. Sunday, Jr. in his official capacity as state Attorney
General. Id. J] 243-251. In Count Ill, Nova Distro challenges a provision of Act 57 which
allows the state Attorney General the ability to deny a manufacturer's certification if it was
denied listing or removed from a different state’s ENDS directory “if the other state's directory
has requirements similar to those of the directory under this section.” Id.; see 72 PA. STAT. §
206-I (j)(2). Nova Distro alleges that this provision impermissibly delegates basic policy
matters to the state Attorney General in violation of the Due Process Clause of the Fourteenth
Amendment. (Doc. 1, {] 250). In their brief in opposition to the Commonwealth’s motion for
summary judgment, however, plaintiffs indicate that they will stipulate to the dismissal of Count

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On May 21, 2026, plaintiffs filed a motion for preliminary injunction. (Doc.
5). After hearing from witnesses and building an evidentiary record, the court
determined that it would be better to address the parties’ preemption arguments
under a Rule 56 standard versus a preliminary injunction standard. (Doc. 24)

(citing Del. State Sportsmen's Ass'n, Inc. v. Del. Dep't of Safety & Homeland

Sec., 108 F.4th 194, 197 (3d Cir. 2024)). Plaintiffs’ motion for preliminary
injunction was converted to a motion for summary judgment (“Plaintiffs’ First
MSu”). Id. at 6. Following an expedited period for discovery, plaintiffs filed a
supplemental motion for summary judgment (“Plaintiffs’ Second MSJ”"). (Doc.
33). Plaintiffs’ Second MSJ seeks summary judgment on Counts | and Il. Id.

The Commonwealth, through its Attorney General and Revenue Secretary,
timely filed its own motion for summary judgment. (Doc. 29). Seizure
enforcement of unlisted nicotine vapes begins on October 19, 2026. (Doc. 34,
Pl. SOF, J 84); 72 PA. STAT. § 206-I (n). The motions are ripe for disposition.
Standard of Review

Summary judgment is proper when there is no genuine issue of material
fact in the case, and the moving party is entitled to judgment as a matter of law.

Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citation omitted); see also

Ill to streamline adjudication of this matter. (Doc. 40 at ECF p. 36, n.6). Accordingly, the court
will dismiss Count III without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2).

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Feb. R. Civ. P. 56(a). “A fact is material if its resolution ‘might affect the outcome
of the suit under the governing law,’. . . [a]Jnd a dispute is genuine ‘if the
evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Mall Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th 622, 631 (3d Cir. 2024)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Rule

56 standard does not change in the context of cross-filed motions. Auto-Owners

Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016).

Whether federal law preempts state law is a question of law for the court,
and summary judgment is therefore an appropriate vehicle for resolving such

questions. See Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299, 303,

317-18, (2019). The court decides the question even when it depends on
subsidiary facts. Id. Plaintiffs bear the burden of showing that provisions of the

FDCA and TCA preempt Act 57. R.J. Reynolds Tobacco Co. v. City of Edina, 60

F.4th 1170, 1175 (8th Cir. 2023) (per curiam).
Analysis
I. Act 57 is Not Expressly Preempted by the Text of § 387p
Preemption “is a necessary but precarious component of our system of

federalism[.]” Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687 (3d Cir.

2016). Through the Supremacy Clause, the United States Constitution and the

laws of the United States are “the supreme Law of the Land.” U.S. CONST. art.

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VI, cl. 2. Therefore, Congress has the power to enact laws that preempt state

legislation. Sikkelee, 822 F.3d at 687 (citing Arizona v. United States, 587 U.S.

387, 399 (2012)). Federal law may preempt state law expressly by declaring an

intent to displace state law. Transource Pa., LLC v. DeFrank, 156 F.4th 351, 372

(3d Cir. 2025) (citing Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376-77 (2015)).

In seeking declaratory judgment and injunctive relief in this action, plaintiffs
assert that Act 57 is expressly preempted by 21 U.S.C. § 387p(a)(2)(A), a
preemption clause within the TCA (“Preemption Clause”). (Doc. 1, Compl. {[f]
232-33; Doc. 15, Pl. Br. in Supp. First MSJ, at ECF pp. 16, 18-22). The
Preemption Clause prohibits states from establishing requirements “different
from, or in addition to any requirement... relating to... . premarket review[.]” 21
U.S.C. § 387p(a)(2)(A). Act 57’s correlation to the FDA’s premarket review
process places it within the Preemption Clause of § 387p(a)(2)(A). As discussed
below, however, the Preemption Clause exists within a preservation-preemption-
savings structure. Act 57’s requirements related to sale place that state statute
within the preemption exceptions of the savings clause at § 387p(a)(2)(B)
(“Savings Clause”).

This conclusion derives solely from the text of the TCA. As recognized,

there are two cornerstones of preemption jurisprudence. Wyeth v. Levine, 555

U.S. 555, 565 (2009). One cornerstone, also described as an “ultimate

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touchstone,” is “the purpose of Congress.” Id. (quoting Medtronic, Inc. v. Lohr,

518 U.S. 470, 485 (1996) (citation modified)). “The best evidence” of
congressional purpose “is the statutory text adopted by both Houses of Congress

and submitted to the President.” W.Va. Univ. Hosps., Inc. v. Casey, 499 U.S.

83, 98 (1991). After all, preemption arguments “must be grounded ‘in the text

and structure of the statute at issue.” Kansas v. Garcia, 589 U.S. 191, 208

(2020) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).

The other cornerstone is a presumption against preemption in cases where
Congress has legislated in a field traditionally occupied by the states through use
of their historic police powers. Wyeth, 555 U.S. at 565. States have historically

regulated cigarettes and other tobacco products. Austin v. Tennessee, 179 U.S.

343, 345, 348 (1900); County of Los Angeles, 29 F.4th at 548. However, if a

statute contains an express preemption provision, courts do not invoke any

presumption against preemption. Puerto Rico v. Franklin Cal. Tax-Free Tr., 579

U.S. 115, 125 (2016). They “instead ‘focus on the plain wording of the clause,

which necessarily contains the best evidence of Congress' pre-emptive intent.’”8

8 There is a circuit split on this issue. In reviewing whether a local flavored tobacco ban was
preempted by § 387p, the Ninth Circuit, citing Franklin, did not apply a presumption against
preemption. County of Los Angeles, 29 F.4th at 552-53 n.6. In reviewing whether lowa’s
vapor products directory law was preempted by § 387, the Eighth Circuit applied the
presumption, Mosiman, 183 F.4th at 1051, as did the Fourth Circuit in Vapor Technology
Association v. Wooten, 184 F.4th 329, 346 (4th Cir. 2026) when reviewing North Carolina's
law. The Second Circuit also applied the presumption when reviewing New York City’s

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Id. (quoting Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 594 (2011).

There is an express preemption provision in the TCA, 21 U.S.C. § 387p(a)(2)(A),
so no judicial presumption applies. Therefore, both cornerstones of preemption
jurisprudence lead back to the preservation-preemption-savings clauses of the
statute.

The clauses of § 387p are as follows:

Preservation Clause — “Except as provided in paragraph (2)(A),” which is

the Preemption Clause, “nothing in this subchapter, or rules promulgated under
this subchapter, shall be construed to limit the authority of ...a State... to
enact... and enforce any law . . . with respect to tobacco products that Is in
addition to, or more stringent than, requirements established under this
subchapter, including a law . . . 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)
(“Preservation Clause’).

Preemption Clause — States, however, may not “establish” requirements

“different from, or in addition to” federal requirements “relating to tobacco product

flavored tobacco law. U.S. Smokeless Tobacco Mfg. Co. LLC v. City of New York, 708 F.3d
428, 434 (2d Cir. 2013).

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standards, premarket review, adulteration, misbranding, labeling, registration,
good manufacturing standards, or modified risk tobacco products.”
§ 387p(a)(2)(A).

Savings Clause — The Preemption Clause has exceptions, and “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.” § 387(a)(2)(B).

The Preservation Clause “expressly preserves localities’ traditional power
to adopt any ‘measure relating to or prohibiting the sale’ of tobacco products.”

U.S. Smokeless Tobacco Mfg. Co. LLC v. City of New York, 708 F.3d 428, 433

(2d Cir. 2013) (quoting 21 U.S.C. § 387p(a)(1)) (emphasis removed). Through
the Preservation Clause, state and local governments “are free to go above and

beyond the requirements of the TCA to curb tobacco use.” City of Edina, 60

F.4th at 1174. That is, Congress “disclaimed any intent to preempt the tobacco

field.” Vapor Tech. Ass’n v. Wooten, 184 F.4th 329, 347 (4th Cir. 2026) (citing

City of Edina, 60 F.4th at 1174).

The middle preemption layer removes “a few” areas of the tobacco industry
from state regulation—"tobacco product standards, pre-market review,

adulteration, misbranding, labeling, registration, good manufacturing standards,

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and modified risk tobacco products.” Id. at 347-48. The Preemption Clause
“expressly overrides the preservation clause in the case of any conflict between

the two provision's terms.” County of Los Angeles, 29 F.4th at 551.

Immediately following the Preemption Clause is the Savings Clause, which
“excepts various broadly defined categories from preemption.” Id. (citing 21
U.S.C. § 387p(a)(2)(B)). With the Savings Clause, “States maintain the ability to
regulate the sale of tobacco products.” Wooten, 184 F.4th at 348.

A state tobacco regulation “that is framed as a ‘sales ban’ would not be
preempted because it falls under the Savings Clause.” Mosiman, 183 F.4th at
1052 (citing 21 U.S.C. § 387p(a)(2)(B)). The Preservation and Savings Clauses
also “show that Congress did not intend to preempt states' authority to regulate

the sale of tobacco products.” Wisconsinites for Alts. to Smoking & Tobacco, Inc.

v. Casey, 172 F.4th 976, 989 (7th Cir. 2026).

Casey, Mossiman, and Wooten address how the Savings Clause makes it

unlikely that challengers to other states’ ENDS directory laws will succeed on the
merits of their preemption arguments. In their briefs, plaintiffs are critical of the
ways these cases apply statutory construction principles. Their points are well
taken. However, from the various statutory arguments assembled by the
plaintiffs—some new, some recycled—the court reaches the same result when it

comes to the text of § 387p. Congress demonstrated a clear intent that states

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should retain broad powers over tobacco sales. And Act 57, at its core, imposes
“requirements relating to the sale, distribution, possession, [and] information
reporting to the State” within the scope of the Savings Clause. 21 U.S.C.
§387p(a)(2)(B).

For example, plaintiffs argue that Act 57 is not a sales ban and is instead a
“backdoor attempt... at implementing premarket review.” (Doc. 15, Pl. Br. in
Supp. First MSJ, at ECF p. 19). The court can assume the truth of that argument
and still determine that Act 57 is not preempted. Mosiman, 183 F.4th at 1052
(determining that lowa’s registry law was covered by the Preemption Clause
because it involves premarket review).

The TCA contains provisions concerning premarket review of new tobacco
products. 21 U.S.C. § 387}. One way to get on the Pennsylvania ENDS
directory is for a manufacturer to certify that it received a marketing granted order
from the FDA. 72 PA. STAT. § 206-I (b)(1)(i) (citing 21 U.S.C. § 387j). Another
way is to certify that:

the manufacturer has submitted a timely filed premarket
tobacco product application for the electronic cigarette
that contains nicotine to the FDA under 21 U.S.C. § 387)
and the application either remains under review by the
FDA or has received a denial order that has been and
remains stayed by the FDA or court order, rescinded by

the FDA or vacated by a court[.]

72 PA. STAT. § 206-I (b)(1)(ii).

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Returning to the preservation-preemption-savings structure of the TCA, the
Preemption Clause provides that “No State ... may establish . . . with respect to
a tobacco product any requirement which is different from, or in addition to, any
requirement under the provisions of this subchapter relating to . . . premarket
review.” 21 U.S.C. § 387p(a)(2)(A).

“Relating to” is a phrase that “sweeps broadly.” Chevron USA Inc. v.

Plaquemines Parish, 608 U.S. 1, 11 (2026). As construed, “Relating to”:

mean[s] to stand in some relation; to have bearing or

concern; to pertain; refer; to bring into association with or

connection with. One thing can relate to another even if

the connection is indirect, even if it was not specifically

designed to affect it. And, one thing can relate to another

even without a strict causal relationship.
Id. (citation modified).

Each subparagraph of Act 57 refers back, in some way, to the provision at

72 PA. STAT. § 206-I (b) requiring an e-cigarette manufacturer to have FDA
approval, a pending PMTA, or a stay of an FDA denial order. Those are matters
which concern the federal government's premarket review of tobacco products.
Act 57 thus imposes requirements which are “in addition” to federal requirements
“relating to” premarket review. The state statute thus falls within TCA’s
Preemption Clause.

That is not the end of the analysis. The Preemption Clause has exceptions

explicitly named in the subsequent Savings Clause. The Preemption Clause
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“does not apply to requirements relating to the sale, distribution, possession,
[and] information reporting to the State[.]” 21 U.S.C. § 387p(a)(2)(B). The
phrase “relating to” from the Preemption Clause appears again in the Savings
Clause and is given the same broad effect.

The importance of Act 57’s design soon becomes clear. Specifically, the
prohibition subsection, challenged here, states that unlisted vapes “may not be
sold for retail sale in this Commonwealth either directly or through an importer,
wholesaler, retailer or similar intermediary or intermediaries.” 72 PA. STAT.

§ 206-I (n). Act 57’s penalty provisions, also challenged here, are attached to
selling unlisted vapes or offering them for sale. 72 PA. STAT. § 206-I (0).
Consequently, Act 57 is a sales ban.

That is not to say that the Savings Clause operates without limits. The

meaning of “relating to” is “not so broad that it is meaningless” and “requires a

connection that is not tenuous, remote, or peripheral.” Plaquemines, 608 U.S. at

11-12 (citation modified). “Relating to” is also limited by ordinary meanings and
ordinary understandings. Id. at 12. With that said, Act 57 does not test the outer
limits of the Savings Clause. It creates a directory of manufacturer-certified
products approved by the FDA or in process and bans sales of products not in

the directory. Act 57 thus “fit[s] comfortably” within the Savings Clause of

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§ 387p(a)(2)(B) as a sales regulation and as information reporting to the state.

See Wooten, 184 F.4th at 348,

In Rocky Patel Premium Cigars, Inc. v. Bonta, the Ninth Circuit assumed

that the Preemption Clause applied to an unflavored tobacco list that was tied to
California’s flavored tobacco ban and held that the Savings Clause rescued it
anyway. No. 25-8060, ss F.4th s,s 2026 WL 2529324, at *4-5. The court
reached that holding because the list: 1) was a prerequisite for selling tobacco
products in the state; 2) eligibility for sale depended on whether manufacturers or
importers proved that a product was unflavored through an application with the
state; and 3) the application required product descriptions, FDA status,
packaging and marketing information, a sample of the product, and certification
that the product lacked a flavor. Per the Ninth Circuit, such requirements
focused on retail sales and thus satisfied the TCA’s Savings Clause. Id. at *5.

Although Rocky Patel involved banning an entire category of tobacco

products, that distinction does not make its reasoning any less persuasive.
Under Act 57, manufacturers are obligated to comply with ENDS directory
requirements. 72 PA. STAT. § 206-I (a), (g), (n). Eligibility for the directory
depends on whether manufacturers prove that their products have a marketing
granted order from the FDA, are the subject of a timely filed PMTA which is still

pending, or have a stay of an FDA denial order. § 206-I (b). The process

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involves an application and other information reporting. § 206-I (b), (c), (d), (h).
Such requirements, however, are all prerequisites to sale of the product in the
Commonwealth. Consequently, to borrow Eighth Circuit language, even if Act 57
falls into a Preemption Clause bucket, a sales connection scoops it out and

places it into a Savings Clause bucket. See City of Edina, 60 F.4th at 1175-76.

Therefore, Act 57 is not expressly preempted by the FDA.
ll. Act 57 is Not Preempted by the Implication of § 337

The court turns to plaintiffs’ alternative approach to preemption in Count II
of their complaint, which asserts that Act 57’s enforcement provisions are
impliedly preempted under 21 U.S.C. § 337(a). (See Doc. 1 at Jf] 235-42; Doc.
15, Pl. Br. in Supp. First MSJ at ECF p. 22). Section 337 sets forth federal
enforcement authority under the FDCA: “all. . . 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).

Implied preemption comes in two main varieties: field preemption and
conflict preemption.? Conflict preemption occurs when federal law conflicts with

state law. Sikkelee, 822 F.3d at 688 (citation omitted). Conflict preemption itself

° Field preemption occurs “when Congress legislates so as to ‘foreclose any state regulation in
the areal[.]” Transource Pa., LLC, 156 F.4th at 372 (quoting Oneok, Inc., 575 U.S. at 377).
The Preservation and Savings Clauses within 21 U.S.C. § 387p preclude application of field
preemption principles in this case.

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is broken down into impossibility preemption and obstacle preemption theories.

MD Mall Assocs., LLC v. CSX Transp., Inc., 715 F.3d 479, 495 (3d Cir. 2013).

Impossibility preemption is “when a state law conflicts with federal law such that
compliance with both state and federal regulations is impossible[.]” Sikkelee, 822

F.3d at 688 (citing PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011)). Obstacle

preemption is “when a challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of a federal
law.” Id. (citation modified). As such, the Supremacy Clause “invalidates state

law that ‘interferes with or is contrary to federal law.” Farina v. Nokia Inc., 625

F.3d 97, 115 (3d Cir. 2010) (quoting Free v. Bland, 369 U.S. 663, 666 (1962)).

Per the plaintiffs, the Commonwealth is stepping into the FDA’s shoes and
improperly enforcing the federal premarket review process. (Doc. 15, Pl. Br. in
Supp. First MSJ at ECF p. 22). They argue that Section 337(a) is “clear
evidence that Congress intended’ the FDCA to be ‘enforced exclusively by the
Federal Government.” (Doc. 35, Pl. Br. in Supp. Second MSJ at ECF p. 22). In

advancing this argument, plaintiffs look to Buckman Co. v. Plaintiffs' Legal

Committee, 531 U.S. 341 (2001) or decisions relying on Buckman. (Doc. 1,
Compl. Jf 124, 127, 241-42; Doc. 15, at ECF p. 22; Doc. 35 at ECF pp. 23-24,

33; Doc. 40 at ECF pp. 23-24, 31-32, 36; Doc. 45 at ECF pp. 3). The court

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disagrees that implied conflict preemption or Buckman preemption principles
invalidate Act 57.

In Buckman, plaintiffs injured by orthopedic bone screws brought state law
tort claims against a regulatory consulting firm, alleging that the company made
fraudulent representations to the FDA during the clearance process and that the
devices would not have reached the market otherwise. 531 U.S. at 343-44. The
Supreme Court held that the claims were impliedly preempted by the Medical
Device Amendments to the FDCA. Id. at 344, 347. The Court reasoned that
“Ipjolicing fraud against federal agencies is hardly ‘a field which the States have

13

traditionally occupied,” so no presumption against preemption applied. Id. at 347

(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Per

Buckman, the fraud-on-the-FDA claims did not rest on traditional state duties that
“oredated the federal enactments in question[]” but rather “exist[ed] solely by
virtue of FDCA disclosure requirements[,]” such that “the existence of these
federal enactments [was] a critical element in [the tort plaintiff's] case.” Id. at
352-53.

Similar Buckman-derived arguments were unsuccessful in the challenge to
North Carolina’s vapor certification directory law. Wooten, 184 F.4th at 350. As
the Fourth Circuit reads Buckman, “a state law claim is preempted if, but only if,

the plaintiff needs to establish an FDCA violation to prevail on the claim.” Id.

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(emphasis removed). The Wooten court held that, in tying its enforcement
provisions to whether an unregistered vape product was sold in the state, North
Carolina's directory law does not require the state to establish an underlying
violation of the FDCA. Id. at 350-51. The Fourth Circuit reasoned:

Indeed, a manufacturer may disagree with the decision of
the [state Revenue] Secretary to remove them from the
registry for any number of reasons, such as non-payment
of the annual fee or for having made a material
misstatement in the certification process, and continue to
sell their FDA approved vape in North Carolina
notwithstanding the Secretary's action. In either
circumstance, the manufacturer will have complied with
federal law but violated S.L. 2024-31. Because North
Carolina can enforce S.L. 2024-31 without establishing an
FDCA violation, S.L. 2024-31 does not run afoul of
§ 337(a).

Id. at 351.

The Seventh Circuit similarly distinguished Buckman in its preemption
analysis of Wisconsin’s vape registry law. Per that circuit court of appeals
decision, Wisconsin’s law “asks whether a product has FDA approval. It does
not involve an adjudication of a violation.” Casey, 172 F.4th at 988.

The court is persuaded that Act 57 is similar and adopts the same

reasoning as the above cases. To enforce Act 57, the Commonwealth need only

10 From a different angle, the Eighth Circuit held that Buckman did not apply to lowa’s vape
registry law, because lowa’s law “requires ENDS product manufacturers and retailers to certify
that they have complied with FDA requirements . . . [which] promotes, not undermines, the
FDA's premarket approval process.” Mosiman, 183 F.4th at 1053.

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demonstrate that an unlisted nicotine vape was sold or offered for sale in
Pennsylvania. 72 PA. STAT. § 206-I (n), (0). That showing does not require proof
that the FDCA was violated. Furthermore, a rianufacturet may be excluded from
the directory for reasons having nothing to do with federal law, such as failing to:
pay the state’s annual fees, post a surety bond, appoint a Pennsylvania agent for
service of process, furnish importer declarations, or submit a truthful certification
to the Commonwealth. 72 PA. STAT. § 206-I (c), (i), (j), (kK), (u). A manufacturer
in that position may be in full compliance with federal law and violate Act 57.
Therefore, in the case of Act 57, “cross-referencing to FDA approval orders is not
equivalent to enforcing the FDCA itself,” Casey, 172 F.4th at 989, and the
Commonwealth’s certification and enforcement provisions do not exert an
“extraneous pull” on the federal scheme. Buckman, 531 U.S. at 353.
lll. Plaintiffs’ Other Preemption Arguments Fall Short
Plaintiffs remaining arguments fail to discredit the other circuit-level
decisions. With respect to the Seventh Circuit’s analysis of 21 U.S.C. § 387p,
Plaintiffs argue that the Casey court made up propositions out of whole cloth.
(Doc. 40, Pl. Br. in Opp. to Def. MSJ at ECF pp. 21-23). Specifically, they
challenge this portion of Casey:
[Challengers] claim, Congress only intended to allow state
tobacco regulations that differed from federal regulations.

But this argument misconstrues preemption. Implied
preemption asks whether state law conflicts with federal

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law. See Altria Grp., Inc. v. Good, 555 U.S. 70, 76, 129
S.Ct. 538, 172 L.Ed.2d 398 (2008). A state law that mirrors
a federal standard does not create a conflict; rather, they
impose the same standards. Id. at 76-77, 129 S.Ct. 538.
There is no implied conflict preemption if there is no
conflict. See Wyeth v. Levine, 555 U.S. 555, 581, 129 S.Ct.
1187, 173 L.Ed.2d 51 (2009). Accordingly, the TCA
permits identical regulations as well regulations “in addition
to, or more stringent than” the FDA's requirements. See
21 U.S.C. § 387p(a)(1).

172 F.4th at 988 (citation modified).

To summarize, Casey relies on the Supreme Court's decision in Good for
the proposition that states can pass laws mirroring federal standards. While the
court does not locate explicit support for that proposition in Good, other Supreme
Court decisions do provide support. In the medical device context, the Court has
read the preemption clause at 21 U.S.C. § 360k" to permit state law duties

parallel to federal requirements. Riegel v. Medtronic, Inc., 552 U.S. 312, 330

(2008) (citing Lohr, 518 U.S. at 495).
Plaintiffs’ reference to the Federal Insecticide, Fungicide, and Rodenticide
Act (“FIFRA”) provides further support for the above proposition in Casey and

undercuts plaintiffs’ own arguments about 21 U.S.C. § 387p. (Doc. 35 at ECF p.

11 Section 360k provides: “no State . . . may establish or continue in effect with respect to a
device intended for human use any requirement--(1) which is different from, or in addition to,
any requirement applicable under this chapter to the device, and (2) which relates to the safety
or effectiveness of the device or to any other matter included in a requirement applicable to the
device under this chapter.” 21 U.S.C. § 360k(a).

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27-28). Per plaintiffs, a provision of FIFRA, 7 U.S.C. § 136v, is “analogous” to
and “uses substantially similar language” to 21 U.S.C. § 387p. (Doc. 35 at ECF
p. 27). As the Supreme Court has concluded, however, a state law requirement

is not preempted by FIFRA if it is equivalent to federal requirements. Bates v.

Dow Agrosciences LLC, 544 U.S. 431, 447 (2005). If the TCA and FIFRA are
substantially similar as plaintiffs argue, then Act 57 does nothing to implicate
conflict preemption by making federal premarket review one of the conditions
precedent to a state ENDS directory listing.

Plaintiffs’ repeated references to expressio unius est exclusion alterius and
the anti-surplusage canon also do not compel a different reading of § 337 or
§ 387p. (Doc. 35 at ECF pp. 24-27, 32; Doc. 40 at ECF pp. 20, 23). The
expressio unius maxim translates to “the expression of one thing is the exclusion

of the other.” United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (en banc).

The canon against surplusage, means “a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant.”. Duncan v. Walker, 533 U.S. 167, 174 (2001).

In advancing expressio unius arguments, plaintiffs refer to § 337(b) which
allows states to initiate proceedings for civil enforcement or to restrain violations
of federal provisions related to food safety. Plaintiffs argue that, by negative

implication, § 337(b) prevents states from enforcing federal tobacco provisions

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through laws like Act 57. (Doc. 35 at ECF pp. 25-26). But as explained above,
enforcement of Act 57 is not co-extensive with enforcement of the FDCA. Such
an argument also runs counter to plaintiffs’ anti-surplusage arguments. If
§ 337 preempted every state law related to federal tobacco requirements, then
the Preservation Clause and Savings Clause in § 387p would have very little, if
anything, to do in the statutory scheme applicable to those products.'* In
response to plaintiffs’ anti-surplusage arguments, the court’s reading of the
FDCA and TCA gives effect to all three clauses in § 387p.

As an example of trying to give all three clauses their full effect, in U.S.

Smokeless Tobacco, the company challenged New York City’s flavored tobacco

ordinance, arguing that the law was preempted by the TCA. 708 F.3d at 430.
The company argued that the ordinance looked like a sales rule but was really a
product standard. Id. at 434. The Second Circuit accepted the company’s
principle. Id. It agreed that a sales ban which actually orders manufacturers to
restructure their operations does not escape preemption just because the law is

a sales regulation on its face. Id. (citing Nat'l Meat Ass'n v. Harris, 565 U.S. 452,

12 Given the federal-state balance struck at 21 U.S.C. § 387p, the statute’s preservation-
preemption-savings structure might be a good example of why, “[t]he anti-surplusage canon is
not an iron rule.” Mullin v. Al Otro Lado, 609 U.S. 258, 272 (2026). The canon is a product of
assuming that careful writers are usually economical in their use of words, “[b]ut even excellent
writers do not always trim every unnecessary word, and the same is true of Congress.” Id.
Furthermore, while “useful,” the anti-surplusage canon “is subordinate to the cardinal canon
that a legislature says in a statute what it means and means in a statute what it says there.”

Id. at 273 (quoting U.S. Postal Serv. v. Konan, 607 U.S. 391, 406 (2026) (citation modified)).

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464 (2012)). To give the Preemption Clause full effect, it also observed that
states could run afoul of the clause by passing a law encroaching on “the
scientifically expert FDA” but determined that the law in question did not do so.
Id. at 435. The court, however, refused to extend these principles to every sales
ban, “many of which would likely have some effect on a manufacturer’s
production decisions[.]” Id. at 434. Collapsing any distinction between sales and
product standards would, per the Second Circuit, render the TCA’s Preservation
Clause superfluous. Id.. So, it adopted a narrower reading of the Preemption
Clause that also gave effect to the Preservation Clause and the Savings Clause.
Id. at 434-35. The Second Circuit read § 387p as a statute that “reserves
regulation at the manufacturing stage exclusively to the federal government, but
allows states and localities to continue to regulate sales and other consumer-
related aspects of the industry in the absence of conflicting federal regulation.”
Id. Here, Act 57 reserves the premarket review process exclusively to the federal
government and uses the outcome of that federal process as one of the
conditions precedent for inclusion on a state list of permitted nicotine vapes. It
does not encroach on any process used by the FDA in its premarket review of
new tobacco products.

In furthering their preemption arguments, plaintiffs also rely on National

Meat, referenced by the Second Circuit in the above decision. (Doc. 15, Pl. Br. in

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Supp. First MSJ, at ECF pp. 21-22). National Meat refused to allow California to

evade the Federal Meat Inspection Act (“FMIA”) by framing a regulation of
slaughterhouse operations as a ban on selling meat “produced in whatever way
the State disapproved.” 565 U.S. at 463-64. That is, California’s “sales ban”
label could not save a state law that, in practice, directed state slaughterhouses
how to handle pigs. Id.

National Meat does not change the outcome of this case. The FMIA’s

savings clause is not the same as the TCA’s preservation-preemption-savings
structure. Compare 21 U.S.C. § 678 with 21 U.S.C. § 387p(a). To borrow
another court’s illustration, § 387p has been described by the Ninth Circuit as a

“oreservation sandwich.” Rocky Patel, 2026 WL 2529324, at *2 (quoting County

of Los Angeles, 29 F.4th at 550, 555). Adapting this analogy, the Preemption

Clause is the meat and cheese, which Congress sandwiched between two slices

of preserved and saved state authority. County of Los Angeles, 29 F.4th at 555;

see also Utah Vapor Bus. Ass'n Inc. v. Utah, 792 F. Supp. 3d 1226, 1232 (D.

Utah 2025), app dismissed, No. 25-4046, —sF .4th , 2026 WL 2561598

(10th Cir. Aug. 31, 2026) (“two pieces of preservation/saving with a slice of
preemption in between’). The Savings Clause—or the bottom slice of bread—
saves from preemption any state “requirements relating to the sale, distribution,

possession, [and] information reporting to the State” among other things. 21

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U.S.C. § 387p(a)(2)(B). So, the sales distinction that National Meat rejected is

one that Congress authorized in the TCA through the wording of the Savings

Clause. County of Los Angeles, 29 F.4th at 557. Act 57 thus operates within the

Savings Clause as a sales distinction. It is not preempted. The
Commonwealth's motion for summary judgment will be granted.
Conclusion

For the reasons set forth above, plaintiffs’ motions for summary judgment
will be denied. The defendants’ motion for summary judgment will be granted.
Count III of plaintiffs’ complaint will be dismissed at their request pursuant to
Federal Rule of Civil Procedure 41(a)(2). The Clerk of Court will be directed to
enter judgment in favor of the defendants and against plaintiffs. An appropriate
order follows.

BY THE COURT:

Date: ol fa Le

JUDGE JULIA K. MU
United States Distric

34