The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
Before the Court are Plaintiff National Tobacco Company, L.P.'s ("NTC") Motion for a Preliminary Injunction (Docket No. 3) and Defendant District of Columbia's ("District") Motion to Dismiss NTC's Complaint (Docket No. 11). For the reasons set forth below, NTC's Motion for a Preliminary Injunction is denied and the District's Motion to Dismiss is granted in part and denied in part.
NTC, a corporation based in Kentucky, manufactures tobacco products, including cigar wrappers. Compl. ¶ 3. NTC created the Zig-Zag brand of roll-your-own tobacco products, and is now the fourth largest producer of such products in the United States. Id. NTC began selling its Zig-Zag cigar wrappers in 2009, and claims that those products "account for a substantial portion" of NTC's national business. Id. ¶ 8.
The District's Ban on Cigar Wrapper Sales
NTC has sued the District, seeking judgment declaring D.C. Code § 48-1103(e)(1)(D) unconstitutional under the Commerce Clause, Supremacy Clause, Due Process Clause, and Equal Protection Clause. That statute is the ban on the sale of cigar wrappers that went into effect on July 23, 2010 as part of the Prohibition Against Selling Tobacco Products to Minors Amendment Act of 2010 ("the Act"). The Act amended provisions of the D.C. Code defining and creating punishments for possessing and selling drug paraphernalia, and specifically regulated the sale of cigar wrappers.
Section 48-1101, the definitions section of the Code, defines drug paraphernalia, in part, as "[c]igarette rolling paper or cigar wrappers sold at a commercial retail or wholesale establishment, which does not derive at least 25% of its total annual revenue from the sale of tobacco products and which does not sell loose tobacco intended to be rolled into cigarettes and cigars." Section 48-1101(3)(L)(xv).*fn1 Put another way, cigar wrappers are not considered drug paraphernalia when they are sold at a specialty shop defined in Section 48-1101.
The prohibited acts section of the Code, however, bans of the sale of cigar wrappers completely: "it is unlawful to sell . . . [c]igar wrappers, including blunt wraps" in the District. See Section 48-1103(e)(1)(D). Although Section 48-1103 allows for the sale of cigarette rolling papers at specialty shops (thus acknowledging the exception in Section 48-1101(3)(L)(xv)), there is no corresponding exception for cigar wrappers. The statutory scheme results in a scenario where, although cigar wrappers are not considered drug paraphernalia if they are sold at specialty shops, the sale of all cigar wrappers is nevertheless banned outright.
Prior to the passage of the Act, Peter J. Nickles, Esq., then-Attorney General of the District of Columbia pointed this "definitional inconsistency" out to the D.C. Council, which decided not to amend the Act. On account of the fact that "under a literal reading," the Act results in a "loss of an existing exception that allows tobacco specialty shops to sell cigar wrappers," Nickles informed then-Mayor Adrian M. Fenty that he would not be enforcing the ban against "tobacco specialty shops that sell cigar wrappers." Exh. 3. to Pl.'s Mem. at 3.
Other than this letter from the former Attorney General to the former Mayor, the District concedes that there has been no official writing, such as a directive to local law enforcement or regulatory agencies, from the District stating that it will not enforce the ban. Although the District asks the Court to accept its representation that the District does not intend to enforce the ban, the District concedes there is nothing to prevent the D.C. government from changing its position at any time in the future. The District's representation is undermined further by its concession that the United States Attorney for the District of Columbia, not the Attorney General for the District of Columbia, is the prosecuting authority for violations of the cigar wrapper ban. See D.C. Code § 23-101 (2001). There is nothing, moreover, in this record reflecting whether the U.S. Attorney's Office shares the position of the D.C. Attorney General regarding non-enforcement of the ban.
Penalties for the Sale of Cigar Wrappers
NTC has argued that Section 48-1103's failure to set forth a penalty for the sale of cigar wrappers runs afoul of the due process clause. The District failed to rebut or address this allegation in any of its briefs. For the first time at oral argument, however, the District argued that such a penalty provision did exist. The District pointed out, in the version of Section 48-1103 published by Michie's Legal Resources that counsel for NTC had handed to the Court, the following penalty provision at subsection (e)(5):
A person who violates this subsection shall be imprisoned for not more than 180 days or fined not more than $1,000, or both, unless the violation occurs after the person has been convicted in the District of Columbia of a violation of this subchapter, in which case the person shall be imprisoned for not more than 2 years, or fined not more than $5,000, or both.
Because this subsection did not exist in the Court's West version, the Court undertook to determine why one version of the statute contained a penalty provision while another version did not. The Court's research revealed even more sloppy drafting than the "definitional inconsistency" discussed above.
Section 48-1103 as it existed prior to the 2010 amendments contained a penalty provision at subsection (e)(4) with the same language outlined above in the current Michie's version of the Code. As part of the Act, which became effective July 23, 2010, the D.C. Council amended 48-1103 subsections (e)(1)(D), (e)(2), and (e)(3), but did not amend or strike the penalty provision at subsection (e)(4). See 57 D.C. Reg. 3019 (Apr. 9, 2010); 57 D.C. Reg. 6905 (Aug. 6, 2010). Subsection (e)(4) was ostensibly still part of the statute after those amendments. As part of the Legalization of Marijuana for Medical Treatment Amendment Act of 2010, which became effective on July 27, 2010, the D.C. Council again amended Section 48-1103. In that Act, subsection (e) was amended in that:
[a] new paragraph (4) is added to read as follows: "(4) A cultivation center or dispensary may sell cigarette rolling papers in accordance with the Legalization of Marijuana for Medical Treatment Initiative of 1999, effective February 25, 2010 (D.C. Law 13-315; 57 DCR 3360).
See 57 D.C. Reg. 4798 (June 4, 2010); 57 D.C. Reg. 7549 (Aug. 20, 2010).
It appears that Michie's Legal Resources interpreted the amendment in the Marijuana Act to mean that the existing penalty provision at (e)(4) would merely be moved down to (e)(5) and the new provision would be inserted as the new subsection (e)(4). The West publishers, however, appear to have interpreted the amendment to mean that the penalty provision at (e)(4) would be removed and replaced with the new subsection (e)(4) set forth in the Marijuana Act.
As of this writing, the Michie's version of the Code still contains the penalty provision at 48-1103(e)(5), whereas the updated West version does not. Although the District contends that the Michie's version is correct and that the exclusion of the penalty provision from the West version is merely an inadvertent "non-substantive, paragraph numbering error," the "District of Columbia Official Code" on the D.C. Council's web site and the D.C. Government's web site, apparently published by West, still do not contain any such penalty provision.*fn2