The U.S. Postal Service (USPS) has made available the Field Information Kit and Management Instructions referenced in its November 4, 2021 Postal Bulletin, correcting hyperlinks in the Postal Bulletin. The Field Information Kit and the Management Instruction are posted to the USPS website, available here and here, respectively.
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Vapor Litigants Ask Supreme Court to Review Deeming Rule Cases
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?
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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.
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THC, CBD and other Non-tobacco Vaping Product Sellers Should Take Note of New PACT Act Provisions
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.
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Philadelphia Appeals Preliminary Injunction Against Flavor Ban
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).
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DC Circuit Decides Deeming Rule Doesn’t Violate Appointments Clause or First Amendment
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.
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New Virginia Law Taxes Remote Sellers of Tobacco Products Beginning Jan. 1, 2021
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.
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Two U.S. Courts of Appeals to Consider Federal Preemption of Local Flavor Bans
Plaintiffs have appealed to the Eighth and Ninth Circuits, challenging flavored tobacco bans in Los Angeles County, California, and the City of Edina, Minnesota. The cases could have implications for similar laws in other States and localities.
Has Congress preempted local authority to ban the sale of flavored tobacco products? Two different U.S. Courts of Appeals will have the opportunity to answer the question in R.J. Reynolds Tobacco Co., et al. v. City of Edina, et al., No. 20-2852 (8th Cir.), and R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 20-55930 (9th Cir.).
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Is L.A. County’s Flavored Tobacco Ban Unlawful?
Cases challenging Los Angeles County’s flavored tobacco ban could define the limit of State and local authority in addressing flavored tobacco products and could have implications for similar laws in other States and localities.
Los Angeles County’s flavored tobacco ban is being challenged in two cases: R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 2:20-cv-04880 (C.D. Cal.), and CA Smoke & Vape Association, Inc., et al. v. Los Angeles County, et al., No. 2:20-cv-4065 (C.D. Cal.). Both cases are before the Honorable Dale S. Fischer of the U.S. District Court for the Central District of California.
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Troutman Sanders Tobacco Team Featured in Bloomberg Tax Article Regarding Post-Wayfair Taxation of Small Businesses and Potential Congressional Legislation
In a recent article in Bloomberg Tax, Troutman Sanders attorneys Robert Claiborne and Agustin Rodriguez discuss a House subcommittee hearing on the effect of the U.S. Supreme Court’s Wayfair decision on small businesses and whether Congress might try to mitigate the effects of state and local taxation on interstate commerce in the wake of