RED EARTH LLC v. U.S

roved of by the Supreme Court in Moe and Colville, the PACT Act requires Native American retailers to collect taxes on behalf of a host of different state and local taxing jurisdictions. Compliance with the plethora of state and local laws now made applicable under the PACT Act far exceeds the "minimal burden" approved of by the Supreme Court. Whether the Supreme Court would likewise approve of the requirement that Native American retailers be subject to the jurisdiction of every state and every locality into which their goods are shipped is unclear and certainly merits further inquiry. At this juncture, however, it cannot be said that plaintiffs have shown a clear likelihood of success on the merits of that claim.

Of course, a tax imposed directly upon the Indian smoke shop itself would be problematic because a "[s]tate is without power to tax reservation lands and reservation Indians." See Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 458 (1995). The key issue is:

who bears the legal incidence of a tax. If the legal incidence of an excise tax rests on a tribe or on tribal members for sales made inside Indian country, the tax cannot be enforced. . . . But if the legal incidence of the tax rests on non-Indians [as it clearly does in this case], no categorical bar prevents enforcement of the tax . . . [and] the State may impose its levy . . . and may place on a tribe or tribal members `minimal burdens' in collecting the toll. . . . .

Id. at 459.

Alternatively, plaintiffs argue that the statute is impermissibly vague as to the conduct that is prohibited because it incorporates generally the laws relating to the sale of cigarettes and smokeless tobacco of the destination jurisdiction. They note that there are at least 6,000 different taxing jurisdictions (possibly as many as 8,000) and that requiring a remote seller to know what conduct is proscribed by each one of those taxing jurisdictions is impossible to ascertain.

Defendants cavalierly dismiss plaintiffs' concerns as to the burdens imposed by the PACT Act as "the cost of doing business." They also claim that only 550 of those 6,000 plus taxing jurisdictions currently have laws relating to the sale of cigarettes. The Court finds the number of current taxing statutes to be irrelevant because, even if there are only 550 today, there are thousands of taxing jurisdictions and any one of them can enact new legislation relating to the sale of cigarettes and smokeless tobacco tomorrow. Indeed, plaintiffs proffered at oral argument that the City of Buffalo is currently considering imposing its own tax levy on the sale of cigarettes. And as the Supreme Court noted in Bellas Hess,

[I]f the power of Illinois to impose use tax burdens upon National were upheld, the resulting impediments upon the free conduct of its interstate business would be neither imaginary nor remote. For if Illinois can impose such burdens, so can every other State, and so, indeed, can every municipality, every school district, and every other political subdivision throughout the Nation with power to impose sales and use taxes. The many variations in rates of tax, in allowable exemptions, and in administrative and record-keeping requirements could entangle National's interstate business in a virtual welter of complicated obligations to local jurisdictions with no legitimate claim to impose `a fair share of the cost of the local government.'

Bellas Hess, 386 U.S. 759-60 (footnotes omitted).

Although the Court agrees that the PACT Act makes compliance with the various state and local cigarette laws truly burdensome, the Court finds that plaintiffs are unlikely to succeed on their void-for-vagueness claim. "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Thus, a law or regulation whose violation could lead to such a deprivation must be crafted with sufficient clarity to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited" and to "provide explicit standards for those who apply them." Id.

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications."

See Grayned, 408 U.S. at 108-109. The Supreme Court recently reiterated the void-for-vagueness doctrine in Skilling v. United States, 130 S.ct. 2896, 2927-28 (2010). "To satisfy due process, `a penal statute [must] define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement.'" Id. (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)).

In Interactive Media Entertainment and Gaming Ass'n, Inc. v. United States, 580 F.3d 113 (3d Cir. 2009), the Third Circuit addressed an argument similar to that made by the plaintiffs here. Plaintiff in that case challenged the Unlawful Internet Gambling Enforcement Act of 2006, 31 U.S.C. § 5361, as void for vagueness. That statute incorporated federal, state and tribal laws relating to the legality of gambling, and made it a crime for any person to engage in the business of gambling with another person via the Internet where "such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received or otherwise made." Id. at 114 (quoting 31 U.S.C. § 5362). Like the PACT Act, a violation of that statute was punishable as a felony crime. Plaintiff argued that compliance with the statute was impossible because the statute lacked an "ascertainable and workable definition" of illegal gambling by failing to define illegal gambling and instead incorporating other federal and state laws relating to gambling. The Third Circuit rejected that argument stating: "`[A] statute is not unconstitutionally vague merely because it incorporates other provisions by reference; a reasonable person of ordinary intelligence would consult the incorporated provisions.'" Id. at 116 (quoting United States v. Iverson, 162 F.3d 1015, 1021 (9^th Cir. 1998)). Indeed, as the defendants note, there are a plethora of federal statutes that incorporate state and local laws by reference. See Def. Memo. of Law in Opp. Mtn. for Preliminary Injunction, Case No. 10-cv-530, Dkt. 25, at 16 n. 2.

Compliance with the plethora of federal and local laws relating to cigarette sales no doubt will be burdensome. Before shipping an order, a remote seller will need to consult the existing laws to ensure that they have paid the requisite taxes and are in full compliance with the applicable laws of the destination jurisdiction. And a violation of any of those state or local laws could subject plaintiffs to civil and criminal penalties. However, the fact that compliance will be burdensome does not make it vague. As the Interactive Media court noted: "[w]hat renders a statute vague is not the possibility that it will sometime be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." Interactive Media, 580 F.3d at 117 (quotation omitted). Because a reasonable person could determine what is prohibited and what is permissible by consulting state and local laws governing cigarette sales in the governing jurisdictions, the PACT Act's incorporation of state and local laws does not make it unconstitutionally vague and therefore plaintiffs are unlikely succeed on that claim.

C. Equal Protection Claims

Plaintiffs assert that the PACT Act violates the equal protection component of the Fifth Amendment's Due Process Clause because: (1) it is motivated by an intent to discriminate against Native American retailers; and (2) the use-of-the-mails prohibition discriminates against citizens of different states without any rational basis.

Equal protection analysis under the Fifth Amendment is the same as that under the Fourteenth Amendment. Buckley v. Valeo, 424 U.S. 1, 93 (1976).

1. Intentional Discrimination against Native American Retailers

As to their first contention, plaintiffs claim that Congress intentionally discriminated against them based upon their status as Native Americans in violation of equal protection guarantees. Intentional discrimination can be demonstrated in several ways. First, a law or policy is discriminatory on its face if it expressly classifies persons on the basis of race or gender. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213 (1995). Second, a law which is

facially neutral violates equal protection if it is applied in a discriminatory fashion. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Lastly, a facially neutral statute violates equal protection if it was motivated by discriminatory animus and its application results in a discriminatory effect. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-65 (1977).

It is clear that plaintiffs are alleging the third scenario-that the PACT Act, a facially neutral statute, violates equal protection because it was motivated by discriminatory animus and its application results in a discriminatory effect.

That the PACT Act will have a disproportionate effect on Native Americans is undisputed. Defendants admitted during oral argument that the vast majority of retailers selling cigarettes and smokeless tobacco remotely are Native Americans. In fact, the government estimated that at least 80 percent or more of cigarette and smokeless tobacco delivery sellers are Native American. Legislative history of the Act indicates that Congress was keenly aware of that fact. See, e.g., Dkt. No. 30-2, at 50 (testimony of Government Accounting Office that the majority of Internet cigarette retailers are Native Americans); Dkt. No. 33 at 51 (letter to Congress from National Association of Convenience Stores stating that the majority of Internet cigarette retailers are operated by Native Americans).

However, an equal protection violation cannot be established simply by showing an adverse impact upon a particular group. "Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious discrimination." Washington v. Davis, 426 U.S. 229, 242 (1976). Instead, plaintiffs must establish that Congress enacted the PACT Act with the intent to discriminate against Native Americans.

Discriminatory purpose "implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ` because of,' not merely ` in spite of,' its adverse effects upon an identifiable group." Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added). Discriminatory purpose "implies more than intent as volition or intent as awareness of consequences." Id. Discriminatory intent or purpose typically refers to those instances when a government actor seeks to disadvantage or negatively impact a group of persons. See, e.g., Washington, 426 U.S. at 245-46 (1976) (concluding that purposeful discrimination was not present in a police officers' examination designed simply to test the level of an applicant's verbal skills even though black candidates suffered disproportionate adverse effects); Arlington Heights, 429 U.S. at 268-71 (finding that, although the ultimate effect of a policy was discriminatory, there was no intent to discriminate when the record aptly demonstrated the decision was motivated by zoning, not racial, concerns).

Plaintiffs assert that Congress acted with a discriminatory purpose in enacting the statute. In particular, they point to numerous instances in the record where members of Congress stated that the PACT Act was necessary to deal with the problem of remote cigarette sales by Native Americans who claim sovereignty from state and local taxes. They also point to legislative history that they perceive evinces animus toward Native Americans. Specifically, they note that when a letter from the Seneca Nation of Indians was being introduced into the Congressional record, there was laughter by some of these present. Plaintiffs perceive the laughter as indicating ridicule of the Seneca Nation's position.

See, e.g., Dkt. No. 30-2 at 54 (inquiry by Rep. Keller to GAO official Paul Jones as to whether Native American status provides an exemption from the Jenkins Act); Dkt. No. 31 at 2-5 (letter exchange between Rep. Smith and GAO official Paul Jones regarding GAO's position on the applicability of the Jenkins Act to Native American tribes); Dkt. No. 32-2 at 38 (report by Rep. King) ("However, in the 14 years since the U.S. Supreme Court ruled that it was within the constitutional authority for the State of New York to tax cigarette sales by Native Americans to non-Native Americans, New York State has not collected these taxes. Instead, the State maintains its policy of forbearance. While no clear reason has been given, it is likely that Albany simply fears upsetting the State's Native American population.").

In enacting the PACT Act, Congress was clearly concerned with the loss of state and local tax dollars each year. Congress attributed some of those losses to the fact that state and local governments were unable to collect taxes from Native American retailers who, in Congress's view, had improperly asserted sovereignty as a basis for avoiding taxes. Sovereignty is a characteristic unique to Native Americans as only Native Americans can plausibly make an assertion of sovereignty-whether properly or improperly. That the PACT Act was intended to curtail what Congress believed to be improper assertions of sovereignty by Native American retailers is not the same thing as saying that Congress purposefully discriminated against Native Americans as a group. Rather than purposeful discrimination against Native Americans because they are Native Americans, the Act is directed at leveling the playing field for all individuals engaged in retail sales of cigarettes and smokeless tobacco. Congress recognized that leveling the playing field would have an adverse impact upon Native American retailers, but took that action in spite of that fact, and not because of it. Accordingly, plaintiffs have failed to establish a clear likelihood of success on the merits of their invidious discrimination claim.

2. Classification based upon Geographical Location

Plaintiffs next challenge the use-of-the-mails prohibition on the ground that it discriminates in favor of residents of Alaska and Hawaii in violation of equal protection guarantees. The proper method of analysis of this challenge is rational-basis review because fundamental rights are not implicated. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40 (1985); Decatur Liquors, Inc. v. District of Columbia, 478 F.3d 360, 363 (D.C. Cir. 2007).

When legislation is reviewed for a rational basis, "courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws." Gregory v. Ashcroft, 501 U.S. 452, 470-71 (1991) (internal quotation marks omitted). The Supreme Court has stated that courts should "not overturn such a [law] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 97 (1979). Furthermore, the Supreme Court has emphasized that under rational basis review, legislatures are allowed to act incrementally: the Equal Protection Clause "does not compel . . . [l]egislatures to prohibit all like evils, or none. A legislature may hit at an abuse which it has found, even though it has failed to strike at another." United States v. Carolene Prods. Co., 304 U.S. 144, 151 (1938). Rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Nor does it authorize "the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded "a strong presumption of validity." Heller v. Doe by Doe, 509 U.S. 312, 319 (1993). "A classification must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Id. at 320.

Essentially, plaintiffs argue that the classification established under the statute is overinclusive because it includes many people in Alaska and Hawaii that do not rely exclusively upon the mail to obtain their consumables, such as individuals living in large cities like Honolulu and Anchorage. Plaintiffs argue that the classification is also underinclusive because it leaves out individuals in other remote regions of the 48 contiguous states who also rely exclusively upon the mails to obtain their groceries. For example, plaintiffs note that there are rural residents located outside of Alaska and Hawaii who also depend exclusively on the United States mails to receive their groceries and other consumables, yet the PACT Act does not exempt those similarly-situated residents. Unfortunately for plaintiffs, "rational basis review allows legislatures to act incrementally and to pass laws that are over (and under) inclusive without violating [equal protection requirements]." See Hayden v. Paterson, 594 F.3d 150, 171 (2d Cir. 2010). "Even if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required." Vance v. Bradley, 440 U.S. 93, 108 (1979) (affirming statutory provision requiring forced retirement from foreign service at age 60). "The provision does not offend the Constitution simply because the classification is not made with mathematical nicety. . . ." Id. (internal quotation omitted). Legislatures are permitted to use generalizations so long as "the question is at least debatable." Heller, 509 U.S. at 326.

See, e.g., Dkt. No. 26-2 at 17 ("The Point Roberts, WA, Post Office cannot be reached by vehicle unless you drive through British Columbia, Canada. Only a boat or float plane will get you there directly."); id. at 18 ("Most Unusual Delivery Method — mule trains in Arizona. Each mule carries about 130 pounds of mail, food, supplies and furniture down the 8-mile trail to the Havasupai Indians, averaging 41,000 pounds per week."); Dkt. No. 26-4 (discussing mail service to the Frank Church Wilderness area of Idaho).

Here, the statute seeks to prohibit use of the mails because it was Congress's judgment that use of the mails to deliver cigarettes and smokeless tobacco facilitates illegal cigarette trafficking and enhances the accessability of cigarettes for minors. Accordingly, Congress enacted the PACT Act to preclude using the mails as a means to ship cigarettes and smokeless tobacco products. It is beyond dispute that Congress has the authority to completely ban those products from the mails.

However, Congress made an exception for mailings within the States of Alaska and Hawaii because it was Congress's judgment that, without such an exception, some citizens in Alaska and Hawaii would not be able to obtain those products at all. The legislative history reveals that Congress was concerned that certain areas of those states are so remote that its citizens rely exclusively upon the use of the mails to obtain their groceries and other consumables. See Dkt. No. 34-2 at 16 (copy of S. Rep. 110-153 (2007)) ("This exception was included to allow mailings of cigarettes and smokeless tobacco to persons located in remote areas of Hawaii or Alaska, where individuals are forced to rely exclusively on the mails to obtain groceries and other consumables."). Without an exception, the PACT Act would essentially operate as a complete ban of those products in certain remote communities in Hawaii and Alaska because there would be no way for residents of those states to obtain them. Nothing about the PACT Act indicates that Congress intended to completely ban the sale of cigarettes and smokeless tobacco. Instead, the statute is intended curb the proliferation of sales of those products over the Internet and Congress believed that one way to do so would be to restrict how those products can be delivered. Congress determined that by permitting cigarettes and smokeless tobacco to be mailed within the States of Alaska and Hawaii, while maintaining the prohibition of interstate mailings of those products, Congress could achieve the PACT Act's purposes of preventing illicit trafficking and evading state taxes while at the same time making those products available to citizens located in remote areas of those states who rely exclusively on the mails to obtain their consumables. When there are "plausible reasons" for governmental action, this Court's inquiry must cease. United States RR Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). "The task of classifying persons for . . . benefits . . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." Id. (internal citation and quotation omitted).

Accordingly, the Court finds that plaintiffs have failed to show that they are likely to succeed on the merits of their equal protection claims.

4. Tenth Amendment

Finally, plaintiffs assert a claim under the Tenth Amendment of the Constitution, which provides "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This Court need not address the merits of their Tenth Amendment claim because under binding Second Circuit authority, plaintiffs, as private parties, lack standing to bring it. See Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234 (2d Cir. 2006) (holding that private parties lack standing to bring Tenth Amendment claim); accord United States v. Bond, 581 F.3d 128 (3d Cir. 2009) (joining the majority of circuit courts in concluding that a private party lacks standing to bring a Tenth Amendment claim but observing a slit of circuit authority on that question).

IV. Injunctive Relief is in the Public Interest

Before granting injunctive relief staying the enforcement of an act of Congress, the Court must find that the public interest favors such an extraordinary remedy. The Court is mindful that an act of Congress represents the collective will of a majority of our nation's democratically-elected representatives and that plaintiffs who seek to enjoin a federal statute face a heavy burden. That said, the Court finds that they have met their burden by

demonstrating a threat of irreparable injury absent injunctive relief and a clear likelihood of success on the merits of their due process claim.

If this Act is permitted to take effect, remote cigarette retailers will be put out of business because they lack the financial resources needed to ensure compliance with the myriad of state and local ordinances to which they are now subject under the Act. Hence, they will face the Hobson's choice of ceasing what they believe to be lawful business activities, or continuing to engage in those activities while facing the threat of criminal prosecution if they are wrong. Because it is likely that most will chose the former, safer course of ceasing activities to avoid criminal prosecution, most retailers will be forced to shut down operations if injunctive relief is denied. Undoubtedly, this will have a significant adverse economic impact upon plaintiffs and their employees, all of whom presumably reside in the Western New York area and many of whom likely reside on the Seneca Nation reservation itself. According to an amicus curie brief submitted on behalf of the Seneca Nation, enforcement of the PACT Act would "devastate the livelihoods of scores of Seneca retailers and thousands of employees in Western New York." See Seneca Nation of Indians' Brief Amicus Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction, Dkt. 42-3, at 2. In light of the severe economic consequence likely to befall those members of the Western New York community, public interest favors staying enforcement pending further litigation of plaintiffs' claims.

Public interest also favors staying enforcement of the PACT Act for another reason. Plaintiffs assert (and defendants do not appear to dispute) that the Congressional expansion of state and local taxing schemes-as mandated under the PACT Act-is unprecedented. The Court is aware of no other federal statute requiring out-of-state retailers to be subject to taxing schemes for state and local governments into which they ship their goods, without regard to whether those retailers have minimum contacts required under the Due Process Clause. While legal commentators have pondered the scope of Congressional authority to enact such legislation, the Court believes that this is the first time it has actually been done. And if Congress possesses the authority to subject out-of-state retailers to every state and local taxing jurisdiction into which their products are delivered, then it has the authority to do so for all commercial products, not just cigarettes.

See e.g., H. Beau Baez III, The Rush to the Goblin Market: The Blurring of Quill's Two Nexus Tests, 29 Seattle U. L. Rev 581, 600, 608, at n. 167 (2006) (suggesting that, for example, "Congress could pass legislation allowing states to require every seller of tangible personal property in interstate commerce to collect the destination state's sales tax, and that the collected tax must be remitted, in-person by the owner of the company, on an hourly basis. While this legislation would be valid under the Commerce Clause, it would certainly run afoul of the Due Process Clause."); Walter Hellerstein, State and Local Taxation of Electronic Commerce: Reflection on the Emerging Issues, 52 U. Miami L. Rev. 691, 722 (1998) (stating that it is "difficult" to answer the question of "whether congressional consent to (or enactment of) legislation [authorizing the imposition of state and local use taxes] would eliminate any due process objections"); Note, Emily Sneddon, Constitutional Law-State Taxation of Interstate Commerce-Use Taxes on Mail-Order Business with No Physical Presence in the Taxing State, 15 U. Ark. Little Rock L.J., 299, 318 (1993) ("The courts will have to determine the point at which the magnitude of activity directed at the taxing state becomes too small to support the duty to collect a use tax under the Due Process Clause."); see also ASARCO, Inc. v. Idaho State Tax Comm'n, 458 U.S. 307, 331 (1982) (O'Connor, J., dissenting) (expressing "dismay" at the Court's decision to rest its holding on due process grounds because doing so "may deprive Congress of the authority necessary to rationalize the joint taxation of interstate commerce by the 50 States.").

Certainly, the public interest favors staying enforcement of a sweeping and unprecedented congressional mandate pending opportunity by this Court and others to fully consider the positions of all parties outside of the hurried context of a preliminary injunction motion.

Although the Court has determined that certain provisions of the PACT Act appear to run afoul of due process constraints, that does not mean the entire statute is unconstitutional. Indeed, for the reasons stated, the Court finds no constitutional impediment to enforcement of the nonmailability provisions. The Supreme Court has cautioned that "`[a] court should refrain from invalidating more of the statute than is necessary. . . . [W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of th[e] court to so declare, and to maintain the act in so far as it is valid.'" See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984)). Thus, "`[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'" Id. (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)).

The Court finds that the unobjectionable portions of the PACT Act may be enforced, including PACT Act's prohibition on use of the mails to deliver cigarettes and smokeless tobacco.

CONCLUSION

Accordingly, upon finding for the reasons stated above that plaintiffs have established a likelihood of success on the merits of their Due Process Clause claim, a threat of irreparable injury, and that the public interest favors injunctive relief, it is hereby:

ORDERED that enforcement 15 U.S.C. § 376a(a)(3), (4) and § 376a(d) (requiring delivery sellers to comply with "all state, local, tribal, and other laws generally applicable to sales of cigarettes or smokeless tobacco as if the delivery sales occurred entirely within the specific state" and requiring the payment of state and local excise taxes and tax stamps to be affixed to products in advance of the sale) is stayed pending trial or other disposition of the merits of that claim; and further

ORDERED, that all other requirements of the PACT Act are deemed by this Court to be enforceable against plaintiffs.

SO ORDERED.