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Robert Claiborne works primarily in the areas of litigation and compliance on behalf of tobacco manufacturers, distributors, retailers, and suppliers.

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”).
Continue Reading Ninth Circuit Denies Petition for Rehearing en Banc in Appeal over Preemption of Los Angeles County’s Flavored Tobacco Ban

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.
Continue Reading Virginia Enacts Tobacco Products Tax Law Applicable to Remote Retail Sales of Cigars and Pipe Tobacco

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.
Continue Reading Deeming Regulations Litigation Update—Federal Court Exercises Even More Oversight over FDA’s PMTA Review

The U.S. District Court for the Eastern District of Pennsylvania entered a permanent injunction against Philadelphia’s enforcement of an ordinance banning the sale of certain flavored tobacco products, after the U.S. Court of Appeals for the Third Circuit upheld a preliminary injunction against the same.

Litigation over a local flavor ban came to a close on March 8, 2022, with Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania entering a permanent injunction:

  • prohibiting the City of Philadelphia from enforcing City Ordinance No. 180457 (the “Ordinance”); and
  • requiring the City to void and withdraw any and all regulations regarding the Ordinance.

The case is Cigar Association of America, et al. v. City of Philadelphia, et al., No. 2:20-cv-03220 (E.D. Pa.).

Continue Reading Philadelphia Flavor Ban Case Results in Permanent Injunction Against the City

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.
Continue Reading US Postal Service Posts PACT Act/POSECCA Field Information Kit and Management Instructions

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 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

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

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