ELR Citation: ELR 20824
No(s). 01-5070 et al (Fed. Cir. Jul 15, 2002)

The court affirms a trial court summary judgment decision holding that the Food and Drug Administration's (FDA's) tobacco regulations did not effectuate a temporary regulatory taking of vending machine owners' property because the challenged regulations were never enforced. The regulations banned the sale of cigarettes and smokeless tobacco from vending machines in venues accessible to people under the age of 18. The court first holds that mere enactment of the regulations is not sufficient to create a taking. Mere enactment is sufficient only in the context of facial challenges. Moreover, while the regulation was to go into effect on August 28, 1997, the owners cannot assert a taking as of that date because on April 25, 1997, FDA was enjoined from enforcing the regulations. In addition, the owners failed to present any evidence that after the date the regulations technically went into effect, FDA actually took steps to enforce them in violation of the injunction. Further, the court holds that the trial court did not err in denying the owners discovery to determine whether or not the regulations were actually enforced at any time. Not only did the owners fail to demonstrate more than a "speculative hope" of finding evidence to support their claim of enforcement, they also failed to file an affidavit explaining why they could not respond to the government's summary judgment motion without discovery.

The full text of this decision is available from ELR (21 pp., ELR Order No. L-543).

Counsel for Plaintiffs
Douglas B. McFadden
1730 K St. NW, Washington DC 20006
(202) 638-2100

Counsel for Defendant
Mark A. Melnick
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000