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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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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