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Published in Update on May 25, 2023. © Copyright 2023, Food and Drug Law Institute, publisher of Update. Reprinted here with permission.

Recent Freedom of Information Act (FOIA) litigation raises an interesting question: When federal agency action requires analyses under a holistic, multi-factor statutory standard, may the agency withhold from disclosure as “deliberative” records related to analyses that purportedly were not factored into the agency’s final decision? A federal court will address this question of public disclosure in litigation between Juul Labs, Inc. (JLI) and the U.S. Food and Drug Administration (FDA).Continue Reading Juul Labs, Inc. v. FDA: A FOIA Twist on the Challenge to FDA’s Marketing Denial Order

Bryan Haynes of Troutman Pepper’s Tobacco Team was quoted in a recent article in Bloomberg Law discussing FDA’s recent proposals to ban menthol in cigarettes and “characterizing flavors” in cigars.

Haynes noted that FDA “has authority to implement tobacco product standards,” but that this authority is “not without limits.”  Haynes also noted that bans on…

Bryan Haynes of Troutman Pepper’s Tobacco Team was quoted in a recent article by Emily Field of Law360 discussing FDA’s recently-announced proposal that would limit nicotine levels in combusted tobacco products.

Haynes noted that this proposal, along with FDA’s other recent proposals to ban menthol in cigarettes and flavors in cigars can be summed up…

In a 2-1 decision, a panel of the U.S. Court of Appeals for the Ninth Circuit held 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.

In a Vapor Voice posting on April 2, 2022, the Troutman Pepper Tobacco…

Bryan Haynes of the Troutman Pepper Tobacco Team was quoted in a recent Vapor Voice article on a proposed new nicotine tax that has been proposed in Congress.

Currently proposed as part of the so-called “Build Back Better” legislation, the bill would impose a new federal excise tax on “taxable nicotine.”  The bill would primarily impact the vaping industry and its consumers by taxing nicotine used in e-liquids on par with cigarettes and at higher rates than other tobacco products, such as cigars and pipe tobacco.  A prior version of the bill would have also raised federal excise tax rates for all tobacco products, but that proposal seems to have been abandoned, at least for now.
Continue Reading Troutman Pepper Tobacco Team Quoted in Vapor Voice Article on Proposed Nicotine Tax

Bryan Haynes of the Troutman Pepper Tobacco Team was recently interviewed for CSP’s Tobacco Regulatory Update.  The article discusses six regulatory issues at the federal, state and local levels that could impact tobacco retailers:

  • The impact of the Biden administration on tobacco laws and regulations
  • FDA’s progress in reviewing requests for marketing authorization for new tobacco products
  • The potential that tobacco retailers may be required to post in their stores “corrective statements” regarding the consequences of smoking
  • The ongoing litigation regarding FDA’s new graphic health warnings for cigarettes.
  • Potential flavor bans.
  • Potential excise tax increases.

Continue Reading Troutman Pepper Tobacco Team Interviewed for CSP Tobacco Regulatory Update

By Troutman Pepper Tobacco Practice, Bryan Haynes, Agustin Rodriguez, & Nicholas Ramos on October 22, 2020

Online businesses selling electronic nicotine delivery systems (ENDS) to consumers must contend with a “patchwork quilt” of state laws. This patchwork of laws creates significant regulatory uncertainty and risk for businesses selling online in this space. There are many …

In a May 21, 2020 Vapor Voice article, the Troutman Sanders Tobacco Team discuss the FDA’s enforcement actions against manufacturers and retailers whose electronic nicotine delivery system (ENDS) products and “other components” allegedly target youth. Having targeted flavored e-liquid products, ENDS items that resemble food and ENDS products that resemble devices such as gaming…

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…

In the August 2019 edition of SMOKESHOP Magazine, Troutman Sanders attorneys Robert Claiborne and Bryan Haynes discuss the tobacco regulatory implications of President Trump’s 2017 Executive Order 13771 reducing regulation and adding cost controls. The Office of Management and Budget (OMB) issued guidance surrounding the Order which prompted a lawsuit to be filed in…