State Regulatory

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On December 19, Representative Henry Waxman, Senator Dick Durbin, and Representative Frank Pallone, Jr. sent letters to the twenty-nine State Attorneys General who were signatories of the August 8, 2014 letter to the FDA regarding regulation of e-cigarettes.  The December 19th letters lauded the continuing efforts of the State Attorneys General to encourage the regulation of e-cigarettes and called on them to classify e-cigarettes as “cigarettes” under the Master Settlement Agreement (“MSA”). Such classification would, among other things, impose cigarette advertising restrictions on vapor products.

An article by the Troutman Sanders Tobacco practice appears in the December issue of Smokeshop Magazine. The article, titled “Hey Legislators: Vaping Products Don’t Belong in the MSA!” discusses the “longshot” bid by congressmen to have e-cigarettes included in the Master Settlement Agreement (“MSA”).

The New York City Council has recently proposed a measure that would prohibit so-called “characterizing flavors” in e-cigarettes.  The move would subject vapor products to the existing ban on “characterizing flavors” in all tobacco products, which only allows flavored tobacco products to be sold in tobacco bars that derive a certain percentage of their revenue from tobacco sales.

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.