Plaintiffs Appeal Request for Injunction Against Colorado Minimum Cigarette Price Law

The legal push against an approved Colorado proposition to require a 20-pack of cigarettes to be sold for at least $7.00 is now set to continue in the appellate courts. The plaintiffs, including cigarette manufacturers Liggett Group, Vector Tobacco, and Xcaliber International, along with Jennifer Ann Smith, a Colorado citizen, appealed the District of Colorado order in the lawsuit to the Tenth Circuit on December 31. 

According to the appealed order, the approved proposition, known as House Bill 20-1427 or Proposition EE, is meant to reduce cigarette use among youth and young adults, and would provide additional funds for the state’s preschool program. The plaintiffs claimed that this portion of the bill is not legal under the United States Constitution. 

The three cigarette companies involved in the lawsuit are reportedly “out-of-state discount manufacturers,” and typically compete with other brands by offering lower prices. They claimed that when the new law becomes effective the increased profit per pack would go to the retailers and that the price difference between their products and their competitors would decrease. 

Judge Raymond P. Moore of the District of Colorado ruled in favor of Colorado and the named state defendants, on December 28, in response to a motion seeking to enjoin the law from going into effect at the beginning of 2021 after a hearing on December 21, 2020. The judge decided not to grant the requested preliminary injunctive relief. 

The judge said that, at this point, the defendants did not challenge that the plaintiffs would suffer irreparable harm without an injunction so it did not address that requirement for an injunction, but focused on the requirement that the plaintiffs have a likelihood of success. The court determined that the minimum price for cigarettes would not cause an undue burden on interstate commerce, but rather among interstate competitors, and thus it does not create a constitutional issue. 

The plaintiffs, represented by Kasowitz Benson Torres LLP and Maven Law Group, also filed a motion to expedite the appeal on Friday. The defendants are represented by the Colorado Office of the Attorney General.