ILNews

Court explores definition of tobacco manufacturing

Michael W. Hoskins
January 1, 2007
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The Indiana Court of Appeals today delved into what it means to manufacture cigarettes under state law.

A unanimous 30-page decision came in Steve Carter in his role as Attorney General v. Carolina Tobacco Company, Inc. http://www.in.gov/judiciary/opinions/pdf/09170702jgb.pdf,No. 49A04-0503-CV-151, affirming a lower court decision that the state attorney general's office improperly refused to include an Indiana tobacco company in a yearly directory of manufacturers allowed to sell cigarettes in the state.

The Marion County suit involves the "Roger" brand of cigarettes that began being distributed in the mid-1990s in Eastern Europe, but came to the United States in August 1999 with the creation of Oregon-based CTC - though the company's registered agency for service of proof is Indianapolis. These cigarettes were produced outside the country and then distributed by CTC here, and the Indiana Department of Revenue determined that Roger brand sales from 1999 to 2002 amounted to about 283 million cigarettes sold in the state.

But based on the tobacco settlement agreements in the late 1990s, certain manufacturers were included on a list compiled by state attorney general offices and CTC was not included. Both sides debated whether state statutes adequately defined "manufacture," and Carter's office equated the term "manufacture" with "fabricate" - only an entity physically assembling or fabricating cigarettes could be dubbed a tobacco product manufacturer and included on the list.

CTC debated this interpretation for the 2003 list, and eventually sued for not being included. Marion Circuit Judge Ted Sosin granted a preliminary injunction against the attorney general's office from enforcing the rules that would mean pulling Roger brand cigarettes from sales locations.

"Based on the factual evidence in this case, the Court concludes that, at all times since its founding in 1999, CTC has directly manufactured Roger cigarettes," Judge Sosin found as a conclusion of law. "The Court, therefore, concludes that CTC has been and continues to be the tobacco product manufacturer of Roger cigarettes."

On appeal, Chief Judge John Baker and Judges Mark Bailey and Nancy Vaidik determined the court did not err in ruling against the attorney general's office. It noted that other Indiana statutes are more broadly interpreted, citing Indiana's product liability statute that defines manufacturer as a "person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product before the sale of the product to a user or consumer."

"In our view, the totality of the evidence presented at trial establishes that OAG's decision to equate 'manufacture' with 'fabricate' for purposes of considering CTC's request for inclusion in the Directory was arbitrary and, therefore, unreasonable," Chief Judge Baker wrote. "Therefore, the trial court's determination... was proper."
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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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