State Regulatory

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Bryan Haynes, Troutman Sanders tobacco practice partner, will be attending the 2014 American Bar Association Section of State & Local Government Fall Council Meeting from October 9-12 in Denver, Colorado. Bryan will act as moderator during the October 9th afternoon panel entitled “The Regulation (or not!) of E-Cigarettes.”

In 2013, the Texas legislature introduced and approved House Bill 3525, which imposed a 55-cent-per-pack fee on cigarettes manufactured by companies that did not participate in the Texas tobacco Settlement Agreement.  The Texas Small Tobacco Coalition and Global Tobacco, Inc. filed a lawsuit challenging the fee against the Texas Attorney General and Comptroller. 

On August 8, 2014, a group of Attorneys General from 29 states submitted comments in response to the Food and Drug Administration’s (“FDA”) Notice of Proposed Rule deeming certain tobacco products subject to the Food, Drug, and Cosmetic Act.  In their letter, the group of Attorneys General stated that “[w]hile the Proposed Rule addresses some of our concerns, it fails to address matters of particular concern, such as characterizing flavors, the marketing of e-cigarettes, and the sale of tobacco products over the Internet.”  As a result, the group of Attorneys General advocates, among other things, that the FDA should do the following:

Missouri Senate Bill 841, which would prohibit the sale of “alternative nicotine products” and “vapor products” to minors, was introduced in February 2014.  In April 2014, the bill passed by an overwhelming majority in both the Missouri House and Senate.  On July 14, 2014, Governor Nixon vetoed the bill.  Over the last few days, various organizations have called upon the Missouri legislature to override the Governor’s veto.

On June 2, 2014, the United States District Court for the District of Columbia approved an agreement (the “Revised Consent Order”) between the federal government and Philip Morris, R.J. Reynolds and Lorillard Tobacco, which resolved a dispute that has been ongoing for over a decade.  The federal government sued the three tobacco companies, alleging, among other things, that the tobacco companies had engaged in deceptive marketing and advertising practices.  In 2006, after finding that the tobacco companies had made false and deceptive statements, the District Court entered a Final Judgment and Remedial Order #1015 (“Remedial Order”).  The Remedial Order required the tobacco companies to publish corrective statements covering five topics where court determined that the tobacco companies had made deceptive statements. 

Nonparticipating manufacturers, wholesalers, and distributors that do business in Oklahoma will be subject to substantial additional requirements if House Bill 2363 currently pending in the Oklahoma State Legislature is enacted.   The bill has passed both houses of the Legislature and appears to be headed toward approval.

An article by the Troutman Sanders tobacco practice appears in the February issue of Smokeshop Magazine.  The article, titled “E-Cigs at the Forefront,” discusses the growing momentum for state-level regulation of tobacco product alternatives, with e-cigarettes attracting the most attention. The full text of the article can be found here.