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Troutman Sanders tobacco team partner Bryan Haynes was interviewed for a June 21 Vapor Voice Magazine article titled “Dark Vapor.” The article deals with the huge propensity for black-market growth in the vapor industry as the FDA’s deeming regulations force many companies to cease their innovative efforts – or even shut their doors.

The U.S. Food and Drug Administration (“FDA”) draws its authority from the Food Drug & Cosmetic Act (“FD&C Act”), whereas the Alcohol Tobacco Tax and Trade Bureau (“TTB”) is authorized under the Internal Revenue Code (“IRC”).  Each of these laws has different definitions of “tobacco products” for different purposes.  FDA’s Deeming Rule has no effect on TTB’s jurisdiction over tobacco products, and vice versa.  While the FDA has deemed certain products to be “tobacco products” under the FD&C Act, some deemed products do not meet the definition of “tobacco products” under the IRC. 

The U.S. Department of Transportation (“DOT”) promulgated a regulation in May 2016 prohibiting passengers from packing e-cigarettes in stowed luggage or using them on airline flights.  As a result, two non-profit organizations, the Competitive Enterprise Institute (“CEI”) and the Consumer Advocates for Smoke-free Alternatives Association (“CASAA”) filed a lawsuit against DOT alleging that DOT exceeded its authority when it promulgated the regulation. 

Bryan Haynes, Troutman Sanders tobacco practice partner, will be attending the Vapor Expo International June 15-16 in Rosemont, Illinois. Bryan will be speaking the morning of June 15, giving an overview of the current e-cigarette regulatory environment in light of the recently-released deeming regulations. This session will also deal with state regulatory initiatives in addition to the new federal requirements.

The FDA’s proposed deeming regulations extend the FDA’s regulatory authority to additional tobacco products including e-cigarettes, e-liquids, cigars, hookah tobacco, pipe tobacco and dissolvables, referred to as “covered tobacco products.”  The FDA currently regulates cigarette tobacco, roll-your own, cigarettes, and smokeless tobacco.

Troutman Sanders tobacco team partner Bryan Haynes was interviewed for a May 22nd Tampa Bay Times article titled “U.S. fans of Cuban cigars still have long wait before they can be sold here.” The report describes trials and tribulations facing Cuban manufacturers of premium cigars in light of the new deeming regulations published by the FDA on May 10, 2016.

On May 11, 2016, Bryan Haynes participated in a panel regarding “The Tobacco Control Act Seven Years Later” during the TMA Annual Meeting and Conference at the Kingsmill Resort in Williamsburg, Virginia.  The panelists discussed the impact of the Tobacco Control Act on their law practices including the consequences of the finalized deeming regulations, best practices in advising clients trying to navigate the FDA regulatory process and tips for manufacturers in preparing for the future.

Nicotine: The deeming regulations promulgated by the Food and Drug Administration contain new warning requirements for certain tobacco products, including cigars, pipe tobacco, e-cigarettes, vapor products, hookah tobacco, dissolvables, and nicotine gel.  Effective August 8, 2018, a nicotine health warning is required on packaging and advertisements.  The language is:

“WARNING: This product contains nicotine. Nicotine is an addictive chemical.”