The Biden administration and Democratic majorities in both the Senate and House could implement significant changes to federal tobacco and cannabis policy over the next two years. For tobacco, the change in party control of the White House and Senate will likely revive the debate around electronic nicotine delivery systems (ENDS) products. For cannabis, the policy may shift toward outright reform (such as federal decriminalization or legalization), federal taxation, or the enactment of legislation beneficial to the cannabis industry. Continue Reading Tobacco & Cannabis Policy in 2021

In November 2019, we reported that the United States Department of Agriculture (USDA) issued an interim final rule establishing a domestic hemp production program that was intended to go into effect for two years before being replaced by a final rule. On January 19, 2021, USDA published that final rule after considering nearly 5,900 public comments and incorporating lessons learned from the 2020 growing season. While the final rule focuses on industrial hemp production, not processed hemp products (such as CBD derived from hemp), it may be particularly important to those who wish to exercise due diligence on their agricultural supply chains. It will be effective March 22, 2021, unless the new Administration changes the timeline. Continue Reading USDA Finalizes Rule to Establish Domestic Hemp Production Program

On December 22, 2020, we blogged about the omnibus 2021 Consolidated Appropriations Act passed by Congress, which included legislation extending the applicability of the Prevent All Cigarette Trafficking (“PACT”) Act to electronic nicotine delivery systems or “ENDS.”  The legislation, called the ‘‘Preventing Online Sales of E-Cigarettes to Children Act,’’ sweeps ENDS into the PACT Act by amending the PACT Act’s definition of a cigarette to include electronic nicotine delivery systems, thereby subjecting remote sales of these products to various requirements and restrictions.  Another important feature of this new law is that the defined term “ENDS” in this new legislation actually covers more than electronic nicotine delivery systems. Continue Reading THC, CBD and other Non-tobacco Vaping Product Sellers Should Take Note of New PACT Act Provisions

On Wednesday, December 23, 2020, the Washington State Attorney General’s office issued a press release that Smoker’s Outlet Online, a Pennsylvania online tobacco retailer, would be forced to pay $65,885 for allegedly distributing tobacco products into Washington state. The payment by Smoker’s Outlet Online was a settlement to avoid a lawsuit from the Attorney General’s Office.

The press release states:  “Washington state law prohibits corporations from selling tobacco products by mail or internet to Washingtonians unless the buyer is a licensed retailer or wholesaler.”  This statement indicating a complete prohibition on the online sale of tobacco products may surprise more than one online retailer, illustrating the importance of retaining counsel to review state requirements when doing business in this highly regulated environment.

On December 21, 2020, as part of the omnibus 2021 Consolidated Appropriations Act, Congress passed legislation extending the applicability of the Prevent All Cigarette Trafficking (“PACT”) Act to electronic nicotine delivery systems or “ENDS.”  The legislation, called the ‘‘Preventing Online Sales of E-Cigarettes to Children Act,’’ sweeps ENDS into the PACT Act by amending the PACT Act’s definition of a cigarette to include electronic nicotine delivery systems. Continue Reading Congress Passes Legislation Sweeping ENDS into PACT Act

The U.S. Court of Appeals for the Third Circuit will review a preliminary injunction against Philadelphia’s enforcement of an ordinance banning the sale of certain flavored tobacco products.

Will a preliminary injunction against Philadelphia’s flavored tobacco ban stand? The U.S. Court of Appeals for the Third Circuit will have the opportunity to decide in Cigar Association of America, et al. v. City of Philadelphia, et al., No. 20-3519 (3d Cir.), appealed from, No. 2:20-cv-03220 (E.D. Pa. Nov. 13, 2020). Continue Reading Philadelphia Appeals Preliminary Injunction Against Flavor Ban

On December 9, 2020, the Tennessee Department of Revenue issued its Notice #20-21, on the subject of the State of Tennessee’s excise tax on other tobacco products or “OTP”.  The Notice notes that OTP is defined as “cigars … manufactured tobacco and snuff of all descriptions whether made of tobacco or any substitute for tobacco.” Continue Reading Tennessee Department of Revenue Clarifies that ENDS, Nicotine Pouches, Smokeable Hemp and Tobacco Substitutes Are Not Subject to OTP Tax

December 15 – 16, 2020

Agustin E. Rodriguez will be presenting on a panel focused on Hot Button Issues and Trends in State and Local Government Tobacco Regulation and Enforcement as part of the Food and Drug Law Institute’s (FDLI) virtual Enforcement, Litigation, and Compliance Conference on December 15-16. This panel will discuss these trends and issues in light of FDA’s authority, the potential effectiveness and unintended consequences of such measures, and how companies can navigate a constantly evolving regulatory framework.

Join the FDLI conference, and hear from your peers about how they are staying compliance and inspection ready, what companies need to do to plan for next year, trends in litigation, and government priorities post-election. Sign up with the discount code Enforcement15 for 15% off registration and learn more at www.fdli.org/enforcement20. See the full program here.

For more information, please contact the Director of Membership and Stakeholder Engagement, Ben Butz.

By Robert Claiborne, Dascher Pasco & Bryan Haynes, Troutman Pepper Hamilton Sanders LLP

Did the FDA violate the Constitution when it issued its rule Deeming Tobacco Products to Be Subject to the Federal Food, Drug, & Cosmetic Act, 81 Fed. Reg. 28,973 (May 10, 2016) (the “Deeming Rule”)? No, according to a recent decision from the U.S. Court of Appeals for the D.C. Circuit. Continue Reading DC Circuit Decides Deeming Rule Doesn’t Violate Appointments Clause or First Amendment

Does your business make remote sales of tobacco products (“OTP”) into Virginia? If so, you should consider whether a recent enactment requires you to pay Virginia’s OTP excise tax. Continue Reading New Virginia Law Taxes Remote Sellers of Tobacco Products Beginning Jan. 1, 2021