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Last year, voters in Montana, Arizona, New Jersey, South Dakota and Mississippi approved ballot measures to legalize marijuana in their states. It appears Virginia will continue this state legalization trend in 2021. In a historic vote last Friday, February 5, 2021, the Virginia General Assembly passed two bills (one in the House and one in the Senate) that would legalize the recreational use of marijuana in the Commonwealth. There are some key differences in the two bills that will need to be reconciled before heading to Governor Ralph Northam’s desk before signature, who has indicated his support for such legislation. If signed into law, the legislation would make Virginia the 16th state in the country to legalize recreational use. Below is a summary of some of the key similarities and differences between the two bills.
Continue Reading Virginia Set to Become the 16th State to Legalize the Recreational Use of Marijuana

Earlier this month, the California Office of Environmental Health Hazard Assessment (OEHHA) provided public notice that it plans to amend regulations governing Proposition 65 (Prop 65) short-form warning labels. OEHHA offered to hold a public hearing, upon request, which would need to be received by February 22, 2021 and it requested public comments on the proposed amendments by March 8, 2021. While these changes only apply to products sold in California, many companies take a broad approach to applying these labels to many, if not all, of their products sold in the US because of the size of the California tobacco consumer market. Therefore, these changes could have far reaching effects for any tobacco-related businesses that sell tobacco products in California or broadly use Prop 65 warnings.
Continue Reading California Considers Modifying Prop 65 Warning Requirements

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.
Continue Reading Tobacco & Cannabis Policy in 2021

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

On Wednesday, December 23, 2020, the Washington State Attorney General’s office issued a press release that Smoker’s Outlet Online, a Pennsylvania online tobacco retailer, would be forced to pay $65,885 for allegedly distributing tobacco products into Washington state. The payment by Smoker’s Outlet Online was a settlement to avoid a lawsuit from the Attorney General’s …

On December 21, 2020, as part of the omnibus 2021 Consolidated Appropriations Act, Congress passed 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. …
Continue Reading Congress Passes Legislation Sweeping ENDS into PACT Act

On Thursday, July 30, 2020, Democratic Senator Tina Smith (D-MN) filed a new bill to federally legalize marijuana. The bill, titled the “Substance Regulation and Safety Act,” would “decriminalize and deschedule cannabis” and provide for its regulation by removing both marijuana  and tetrahydrocannabinols from the Controlled Substance Act and giving the Food and Drug Administration the authority to regulate cannabis products in the same manner, and to the same extent, as FDA regulates tobacco products. …
Continue Reading Minnesota Senator Pushes to Decriminalize and Deschedule Cannabis

In early April, Virginia Governor Ralph Northam signed Senate Bill 918, approving industrial hemp extract, such as cannabidiol (“CBD”), as a food, subjecting it to applicable laws and regulations.  The bill defines “food” as “any article that is intended for human consumption. . . [and] does not mean drugs as defined in [Va. Code] § 54.1-3401.” The bill establishes requirements for the production and manufacture of hemp extracts and authorizes the Virginia Board of Agriculture and Services to adopt regulations regarding contaminant tolerances, labeling, and batch testing. …
Continue Reading Virginia becomes the most recent state to regulate hemp extracts as food

In October 2019, the California Department of Tax and Fee Administration (CDTFA) issued a blatantly discriminatory Special Notice changing how the CDTFA will apply the excise tax for Other Tobacco Products (OTP) to the wholesaler’s cost basis when an out-of-state California distributor sells tobacco products to wholesalers, retailers, or consumers located in California. When a shipment is made by an out-of-state distributor to an in-state customer (retailer or adult consumer), the tax base will be the “wholesale cost” of the in-state purchaser and not the wholesale cost of the distributor. …
Continue Reading California Setting Higher Tobacco Excise Tax Base for Out-of-State Distributors Subject to Legal Challenge on Various Grounds