Troutman Pepper Strategies (TPS), a full-service government affairs and issue management arm of Troutman Pepper, regularly communicates with members of Congress and staff, including relevant committee staff, regarding the status of tobacco-related legislation and policy. These relationships include and extend beyond the congressional committees with tobacco jurisdiction, such as the House Energy & Commerce Committee and the Senate HELP Committee. Additionally, TPS communicates with agency officials, including the Food and Drug Administration and the White House, about tobacco-related regulations and policy.
FDA Withdraws Notice of Proposed Rulemaking For Premium Cigars
On June 11, 2021, the U.S. Food and Drug Administration (FDA) withdrew an advanced notice of proposed rulemaking (ANPRM) for premium cigars issued in March 2018 as part of the Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, which is published twice a year. Nevertheless, FDA commissioned a study to obtain information similar to what it sought in the ANPRM. The study is scheduled to be complete in Spring 2022. Thus, there is still a chance FDA takes a modified approach with respect to premium cigars in the future.
Troutman Pepper Tobacco Team to Participate in FDLI Annual Conference
The Troutman Pepper Tobacco Team will participate in the Food and Drug Law Institute’s Annual Conference. The event is virtual and will be held May 18-20, 2021.
The conference has a well-rounded agenda addressing timely topics of interest for tobacco and nicotine industry stakeholders. FDA Center for Tobacco Products
Senators Introduce Federal Legislation to Tax ENDS and Substantially Increase Taxes for Other Tobacco Products
On April 22, Senator Dick Durbin and others introduced the Tobacco Tax Equity Act of 2021 (S. 1314). The bill would establish a federal excise tax for electronic nicotine delivery systems (“ENDS”) and all other tobacco products that are not currently subject to federal tobacco products excise taxes. The bill would also double the tax rates for cigarettes and impose equivalent rates for most other tobacco products.
FDA to Host Meeting on Deemed Tobacco Product Review
On June 11, 2021, the FDA Center for Tobacco Products Office of Science will host a meeting on the scientific review of deemed tobacco product applications. The meeting will focus on the application intake process, review progress and allocation of review resources. There will be a question and answer session
Florida Court Finds Nonresident Tobacco Distributor On the Hook For Excise Taxes Regardless of Physical Presence
In Global Hookah Distribs. v. Florida, No. 1D20-822 (Apr. 12, 2021), a case before the First District Court of Appeal of Florida, Global Hookah Distributors (Global) unsuccessfully sought a refund of tobacco excise taxes it paid to the State of Florida. Global’s argument rested principally on its lack of a substantial “nexus” with the State.
FDA Proposes to Ban Menthol Cigarettes and Characterizing Flavors in Cigars
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.
FDA Publishes “Public List” of Deemed Tobacco Products, But Leaves Critical Flaws in Apprising Stakeholders of Lawfully-Marketed Products
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.
U.S. Postal Service Issues Proposed Rule Regarding ENDS Nonmailability and Exceptions
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.
Tobacco & Cannabis Policy in 2021
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.