On April 29, the U.S. Food & Drug Administration (FDA) announced that it will issue proposed tobacco product standards within the next year that will effectively ban menthol cigarettes and characterizing flavors in cigars. Once FDA issues proposed tobacco product standards, it will need to go through the notice and comment rulemaking process (and possibly litigation), so it could take several years before FDA implements any new standards.

Continue Reading FDA Proposes to Ban Menthol Cigarettes and Characterizing Flavors in Cigars

In late February, we blogged about legislation passed by the Virginia General Assembly legalizing recreational marijuana.  On March 31, 2021, Virginia Governor Ralph Northam submitted a substitute bill to the Senate for consideration. See https://lis.virginia.gov/cgi-bin/legp604.exe?212+sum+SB1406. The General Assembly is scheduled to reconvene Special Session I on April 7th, when it will consider the Governor’s marijuana proposal. Continue Reading Virginia Governor Pushes for Additional Changes to Marijuana Legislation Passed by the General Assembly

In January, we reported that the United States Department of Agriculture (USDA) issued its final rule establishing a domestic hemp production program, publishing it days before President Biden was inaugurated. The new Administration then instituted a “regulatory freeze pending review” with respect to published rules not yet in effect.

In a USDA Agricultural Marketing Service Bulletin issued on Monday, March 8, 2021, the agency stated “[a]s part of the transition, USDA and many other agencies took the opportunity to review new and pending regulatory actions. This is a routine process done at the beginning of new administrations to ensure longstanding as well as new programs are structured and resourced appropriately and to ensure programs are implemented to best serve their intended stakeholders.”

As such, the final rule will move forward as originally planned and will become effective on March 22, 2021.

The vapor industry has been dealing with the FDA’s Deeming Tobacco Products to Be Subject to the Federal Food, Drug, & Cosmetic Act, 81 Fed. Reg. 28,973 (May 10, 2016) (the “Deeming Rule”) for some time now. Is it constitutional? Continue Reading Vapor Litigants Ask Supreme Court to Review Deeming Rule Cases

On February 16, 2021, the Food and Drug Administration published the long-awaited “public list” of “deemed” tobacco products that:  (1) were on the US market on August 8, 2016, (2) are currently on the U.S. market, and (3) were the subject of a request for marketing authorization submitted to FDA by September 9, 2020. The stated intent of the “public list” is to advise stakeholders of “deemed” tobacco products that can be legally sold in the United States.  However, FDA’s approach to the list leaves critical gaps that, in many cases, fails to apprise stakeholders of unlawfully marketed products and, in other cases, fails to identify products that are lawfully marketed. Continue Reading FDA Publishes “Public List” of Deemed Tobacco Products, But Leaves Critical Flaws in Apprising Stakeholders of Lawfully-Marketed Products

On February 19, 2021, a proposed rule from the U.S. Postal Service (the “USPS”), regarding the treatment of electronic nicotine delivery systems (“ENDS”) in the mail, was published in the Federal Register. The USPS will receive comments on or before March 22, 2021. Continue Reading U.S. Postal Service Issues Proposed Rule Regarding ENDS Nonmailability and Exceptions

On September 9, 2020, the City of Chicago passed an ordinance prohibiting the sale of flavored liquid nicotine products. The City has wasted no time enforcing the ordinance. At the end of January 2021, the City of Chicago filed a complaint against an e-cigarette seller for selling flavored liquid nicotine products to underage Chicagoans. Although the city has filed lawsuits against vape companies before, this suit is the first to enforce the recently passed ban on flavored liquid nicotine products in the city of Chicago. Continue Reading Enforcement Begins Under Chicago’s Ban on Flavored Vaping Products

Last year, voters in Montana, Arizona, New Jersey, South Dakota and Mississippi approved ballot measures to legalize marijuana in their states. It appears Virginia will continue this state legalization trend in 2021. In a historic vote last Friday, February 5, 2021, the Virginia General Assembly passed two bills (one in the House and one in the Senate) that would legalize the recreational use of marijuana in the Commonwealth. There are some key differences in the two bills that will need to be reconciled before heading to Governor Ralph Northam’s desk before signature, who has indicated his support for such legislation. If signed into law, the legislation would make Virginia the 16th state in the country to legalize recreational use. Below is a summary of some of the key similarities and differences between the two bills. Continue Reading Virginia Set to Become the 16th State to Legalize the Recreational Use of Marijuana

Earlier this month, the California Office of Environmental Health Hazard Assessment (OEHHA) provided public notice that it plans to amend regulations governing Proposition 65 (Prop 65) short-form warning labels. OEHHA offered to hold a public hearing, upon request, which would need to be received by February 22, 2021 and it requested public comments on the proposed amendments by March 8, 2021. While these changes only apply to products sold in California, many companies take a broad approach to applying these labels to many, if not all, of their products sold in the US because of the size of the California tobacco consumer market. Therefore, these changes could have far reaching effects for any tobacco-related businesses that sell tobacco products in California or broadly use Prop 65 warnings. Continue Reading California Considers Modifying Prop 65 Warning Requirements

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