A Montana lawmaker who is also a vape store owner has filed a lawsuit in federal court against large tobacco companies for what he believes are illegal lobbying activities that violate a settlement agreement while forcing their vaping products onto shelves.
Rep. Ron Marshall, R-Hamilton, in a lawsuit filed Wednesday, said that big tobacco lobbyists from some of the largest American companies like Altria Group and R.J. Reynolds Tobacco Company, are working against laws that would restrict vaping products for youth, while simultaneously using a Food and Drug Administration process to make only their products available to vape shop retailers.
The lawsuit also accuses Montana Attorney General Austin Knudsen of failing to enforce Montana laws against the same tobacco companies because of donations those companies made to him during the 2024 election cycle and after. Marshall is suing under the “private attorney general doctrine,” which, if the lawsuit is successful, allow him to collect attorney fees for the lawsuit.
Youth advertising concerns
Marshall’s lawsuit says that, as part of the 1998 Tobacco Master Settlement Agreement in which Montana participated, the tobacco companies being sued are prohibited from certain lobbying and marketing activities, especially those which target youth.
As part of the agreement, the tobacco companies also agreed to file annual reports about their lobbying activities in Montana.
However, Marshall said that lobbyists working on behalf of the tobacco companies are not filing the required reports, as the settlement agreement said. He also accuses them of lobbying against legislation that he’s carrying, namely House Bill 149, which, among other things, would:
- Regulate vaping products offered in vending machines.
- Impose licensing and inspecting of those who sell tobacco products.
- Impose more fines and license suspensions against those who illegally sell tobacco products.
Marshall claims that lobbyist Mark Baker, acting on behalf of Altria and NJOY, as well as Edward Redding, lobbying for Reynolds and Reynolds Vapor, have lobbied members of the Legislature against his bill, which survived committee on a 11-9 vote along party lines, only to see it stall on the floor of the Montana House of Representatives. The bill has been on the floor since Jan. 28.
Marshall said in his lawsuit that two “big tobacco” lobbyists are instead trying to stall his legislation while advocating for an FDA registry law in Montana that would make it so that only vaping products endorsed by the Food and Drug Administration could be sold in Montana.
Marshall claims in his lawsuit that those products that have received FDA “authorization” are products that are only manufactured by these same “big tobacco” corporations. Similar lawsuits and concerns that have bubbled up recently across the nation have expressed fear that this would force retailers into only buying and selling products manufactured by large tobacco firms.
The lawsuit claims that Montana is mulling a draft bill, LC1706, that will create a registry of FDA-authorized products which will then form the basis of what Montana retailers can or cannot sell. Marshall and other opponents argue that large tobacco companies are the only ones that can afford such costly and timely “authorization” from the FDA, and that the claims are misleading. Moreover, groups contend that this is a way for large tobacco firms to squeeze out or eliminate competition, some estimate as many as 99% of the other manufacturers.
LC1706, which is the file reference for the draft legislation, was requested by Speaker of the House Rep. Brandon Ler, R-Savage, but has yet to be introduced as a bill this session. It would, if passed, require vaping products that are sold in Montana to be “authorized” by the FDA through its registry, which currently has 34 products listed.
Misleading FDA claims
Part of Marshall’s lawsuit concerns the creation of such a registry of vaping products, which the FDA “authorizes.” He and others contend that an FDA endorsement of any kind is misleading because it gives the mistaken impression that certain products are safer or better than other products.
The wording the FDA uses is specific — while some have used the term “approved” — the legal and technical term is “authorized.”
According to studies, research and policy statements by the U.S. Food and Drug Administration: “There is no safe tobacco product,” and it specifically recommends against electronic cigarettes, even as an alternative to traditional cigarettes.
However, to meet the FDA’s “authorization” standards, the products must not have flavored nicotine vaping fluid; they’re not allowed to claim that they’re a safer alternative to smoking combustible cigarettes; and they cannot be “single-use” devices.
The lawsuit also points out studies by Yale School of Public health that show youth migrated toward whatever tobacco or vaping products were available, raising the double-billed concern that youth who vape would be locked into the “authorized” products or revert back to cigarettes or other tobacco products, both of which are manufactured or sold by large tobacco companies.
Lawsuit claims
The lawsuit also said that since the master settlement agreement with large tobacco companies didn’t include any provisions that address what happens if the companies failed to abide by the agreement, Marshall and his attorneys, from Orr McDonald Law in Missoula, want federal Magistrate Judge Timothy Cavan to ban the lobbyists from the Capitol until the lobbying reports are completed.
The suit also alleges that Knudsen is not pursuing similar legal measures because of a conflict of interest.
“Knudsen has an inextricable conflict of interest by virtue of the fact that both Altria and Reynolds were ‘platinum’ sponsors of his Jan. 11, 2025 inauguration party,” the lawsuit stated. “Further, Attorney General Knudsen provided a Jan. 28, 2025 op-ed in the Montana Newsroom media publication, similar to those authored by other state attorneys general after lobbying from Altria and Reynolds, which evidences an abdication of his duties to enforce the portions of the Master Settlement Agreement.”
The Montana Attorney General’s Office refused to answer questions when contacted by theDaily Montanan Thursday.
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