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A bill was introduced in the New Hampshire legislature on January 3, 2018 regarding the regulation of e-liquids. The bill, NH18-H.1812, specifically addresses labeling requirements for e-liquid products. Distributors and manufacturers of e-liquid products to be sold in New Hampshire would be required to add a product label which…

On November 8, 2017, Congresswoman Diana DeGette (D-Colo.) introduced H.R. 4273. The next day, Senator Brian Schatz (D-Hawaii) introduced S. 2100. If passed, either bill would enact the “Tobacco to 21 Act.” The bills have been referred, respectively, to the House Committee on Energy and Commerce and the Senate Committee on Commerce, Science, and Transportation.

Just last year, Pennsylvania passed a draconian new tax on electronic cigarettes.  Imposed at the rate of 40% of the retailer’s purchase price, the tax applies to all “electronic cigarettes,” which is defined to mean an “electronic oral device, such as one composed of a heating element and battery or electronic circuit, or both, which provides a vapor of nicotine or any other substance and the use or inhalation of which simulates smoking.”  This term is defined to include both (1) a device, as described in the definition above, and irrespective how it is marketed, and (2) any liquid or other substance placed or sold for use in such a device. 

Troutman attorneys Bryan M. Haynes and Robert S. Claiborne, Jr. were featured in the February 2017 issue of SMOKESHOP, a tobacco industry magazine, in an article discussing the Indiana Vapor Act. This article discusses the federal appeals court’s decision that Indiana’s Vapor Pens and E-Liquid Act is unconstitutional to the …

On March 24, 2017, the Third Court of Appeals of Texas decided Hegar, et al. v. Texas Small Tobacco Coalition, et al., No. 03-13-00753-CV. The court held that a tax on nonparticipating or non-settling manufacturers (“NPMs”) did not violate either the Equal Protection or the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The law at issue, Subchapter V to Chapter 161 of the Texas Health & Safety Code (“Subchapter V”), taxed NPMs remaining outside of the Master Settlement Agreement (“MSA”) at approximately $0.55 per cigarette pack and companies subsequently joining the MSA at approximately $0.15 per pack. The case was of particular interest because Texas is not a party to the MSA, yet the MSA’s distinctions were the bases for Subchapter V’s.

On occasion, a  manufacturer of tobacco products may decide to use its permitted facility for another purpose, one that may exceed the permit or be altogether unrelated to the permitted use.  For example, a manufacturer of tobacco products may decide to manufacture cigarette papers and tubes, or to process tobacco for third parties, or even to make a product similar to a cigarette that has no tobacco in the product. Some manufacturers have assumed that a tobacco producer permit will automatically cover its activity to also make these products, but it does not.   

On September 2, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized its rule amending Article 6 of the regulations implementing Proposition 65 (i.e., California’s Safe Drinking Water and Toxic Environment Act of 1986).  As a result of the new regulation, tobacco and electronic cigarette manufacturers may be required to update their Proposition 65 warnings.

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.