Bryan Haynes and Agustin Rodriguez of the Troutman Pepper Tobacco Team will be at FDLI Annual Conference on June 14-15 in Washington, DC. This is FDLI’s first in-person conference since 2019. The conference brings together leading regulators, attorneys, industry representatives, academics, consumer advocates, and consultants to discuss current issues and
Ninth Circuit Denies Petition for Rehearing en Banc in Appeal over Preemption of Los Angeles County’s Flavored Tobacco Ban
The U.S. Court of Appeals for the Ninth Circuit has denied the Plaintiffs’/Appellants’ petition for a rehearing en banc following a divided panel’s holding that the Family Smoking Prevention and Tobacco Control Act neither expressly nor impliedly preempts Los Angeles County’s ban on the sale of flavored tobacco products.
On May 11, 2022, a divided panel of the U.S. Court of Appeals for the Ninth Circuit denied a petition for rehearing en banc filed by Plaintiffs/Appellants R.J. Reynolds Tobacco, Inc., American Snuff Co., and Santa Fe Natural Tobacco Co. (together, the “Plaintiffs/Appellants”) in R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 20-55930. As discussed more fully by Troutman Pepper in Vapor Voice, the same panel earlier held in a split 2-1 decision that Los Angeles County’s flavored tobacco ban is not preempted by the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (June 22, 2009) (the “TCA”).
Cigarette Companies and Federal Government Reach Agreement on Warnings to be Displayed in Retail Stores
Retailers should take note that Philip Morris USA Inc., Altria Group, Inc, R.J. Reynolds Tobacco Company have reached an agreement with the United States Department of Justice on warnings to be placed in retail stores carrying the manufacturers’ cigarettes to warn consumers about the health effects of tobacco. These are referred to as “corrective-statement signs” because they are meant as “corrections” to the manufacturers’ alleged deliberate misleading of consumers as to the dangers of smoking from the 1950s until the early 2000s.
Virginia Enacts Tobacco Products Tax Law Applicable to Remote Retail Sales of Cigars and Pipe Tobacco
New Virginia law addresses excise taxation and other requirements regarding remote retail sales of cigars and pipe tobacco to consumers in the Commonwealth.
On April 27, 2022, the Virginia General Assembly passed House Bill 1199 and Senate Bill 748 regarding the application of the Commonwealth’s tobacco products tax on “remote retail sales” of cigars and pipe tobacco and related requirements.
Vermont Continues Its Crackdown on Online ENDS Sellers
Last year we reported that Vermont Attorney General T.J. Donovan’s office settled with several online sellers over alleged violations of the state’s delivery sales ban of electronic nicotine delivery systems (ENDS) (the Delivery Sale Ban) and that we expected Vermont’s scrutiny to continue. As predicted, Attorney General Donovan’s office recently announced two more settlements with online sellers, resulting in a total of 23 settlements with online ENDS sellers for a total of $833,750 in civil penalties dating back to December 2020.
Deeming Regulations Litigation Update—Federal Court Exercises Even More Oversight over FDA’s PMTA Review
Under Judge Grimm’s Revised Remedial Order, FDA must submit quarterly status reports regarding its review of pending PMTAs for certain popular vapor products.
On April 15, 2022, Judge Paul W. Grimm of the U.S. District Court for the District of Maryland ordered FDA to submit status reports to the Court and to the Plaintiffs in the case every ninety days, beginning on April 29th.
Dr. Califf Takes the Reins at FDA: Five Takeaways for the Tobacco Industry
On February 15, the Senate confirmed cardiologist Robert M. Califf, M.D., to lead the U.S. Food and Drug Administration (FDA). He’s no stranger to the agency. Dr. Califf served a brief stint as FDA’s commissioner of food and drugs from February 2016 to January 2017, and before that, he was deputy commissioner for medical products and tobacco from February 2015 until February 2016. So what might his appointment mean for the tobacco industry? We have five takeaways.
Eleventh Circuit Denies Swisher International’s Request For An Injunction of Further Enforcement by FDA
In August 2021, Swisher International Inc. filed a lawsuit against the Food and Drug Administration (FDA) seeking to have the FDA’s Deeming Rule declared invalid. Swisher followed its lawsuit with a petition for injunction to prevent FDA from taking enforcement action against Swisher while Swisher’s lawsuit against the FDA’s implementation of the Deeming Rule is under consideration and while the FDA processes Swisher’s pending 173 premarket applications. On February 3, 2022, the Eleventh Circuit Court of Appeals upheld a lower court’s denial of a motion for a preliminary injunction finding that Swisher was not likely to suffer “irreparable harm.”
Troutman Pepper Tobacco Team to attend TPE Show in Las Vegas
Bryan Haynes and Agustin Rodriguez of the Troutman Pepper tobacco team will be attending the Tobacco Plus Expo in Las Vegas on January 26-28, 2022. We look forward to seeing our clients and friends at the show.
For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 – bryan.haynes@troutman.com or
In a First, FDA Authorizes Marketing of Low-Nicotine Cigarette as “Modified Risk Tobacco Product”
Some cigarette pack labels may soon feature the phrases “95% less nicotine,” “helps reduce your nicotine consumption,” and “… greatly reduces your nicotine consumption.” On December 23, 2021, the Food and Drug Administration (FDA) issued modified risk granted orders to 22nd Century Group, Inc.’s VLN King and VLN Menthol King cigarettes, allowing the company to market the low-nicotine cigarettes with these proposed reduced exposure claims if the company adds the phrase “Helps you smoke less.” Of course, the company’s products will continue to be required to bear one of four Surgeon General’s warnings for cigarettes.