On April 22, Senator Dick Durbin and others introduced the Tobacco Tax Equity Act of 2021 (S. 1314). The bill would establish a federal excise tax for electronic nicotine delivery systems (“ENDS”) and all other tobacco products that are not currently subject to federal tobacco products excise taxes. The bill would also double the tax rates for cigarettes and impose equivalent rates for most other tobacco products.

On June 11, 2021, the FDA Center for Tobacco Products Office of Science will host a meeting on the scientific review of deemed tobacco product applications.  The meeting will focus on the application intake process, review progress and allocation of review resources.  There will be a question and answer session …

In Global Hookah Distribs. v. Florida, No. 1D20-822 (Apr. 12, 2021), a case before the First District Court of Appeal of Florida, Global Hookah Distributors (Global) unsuccessfully sought a refund of tobacco excise taxes it paid to the State of Florida. Global’s argument rested principally on its lack of a substantial “nexus” with the State.

On April 29, the U.S. Food & Drug Administration (FDA) announced that it will issue proposed tobacco product standards within the next year that will effectively ban menthol cigarettes and characterizing flavors in cigars. Once FDA issues proposed tobacco product standards, it will need to go through the notice and comment rulemaking process (and possibly litigation), so it could take several years before FDA implements any new standards.

In late February, we blogged about legislation passed by the Virginia General Assembly legalizing recreational marijuana.  On March 31, 2021, Virginia Governor Ralph Northam submitted a substitute bill to the Senate for consideration. See https://lis.virginia.gov/cgi-bin/legp604.exe?212+sum+SB1406. The General Assembly is scheduled to reconvene Special Session I on April 7th, when it will consider the Governor’s marijuana proposal.

In January, we reported that the United States Department of Agriculture (USDA) issued its final rule establishing a domestic hemp production program, publishing it days before President Biden was inaugurated. The new Administration then instituted a “regulatory freeze pending review” with respect to published rules not yet in effect.

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On February 16, 2021, the Food and Drug Administration published the long-awaited “public list” of “deemed” tobacco products that:  (1) were on the US market on August 8, 2016, (2) are currently on the U.S. market, and (3) were the subject of a request for marketing authorization submitted to FDA by September 9, 2020. The stated intent of the “public list” is to advise stakeholders of “deemed” tobacco products that can be legally sold in the United States.  However, FDA’s approach to the list leaves critical gaps that, in many cases, fails to apprise stakeholders of unlawfully marketed products and, in other cases, fails to identify products that are lawfully marketed.

On February 19, 2021, a proposed rule from the U.S. Postal Service (the “USPS”), regarding the treatment of electronic nicotine delivery systems (“ENDS”) in the mail, was published in the Federal Register. The USPS will receive comments on or before March 22, 2021.

On September 9, 2020, the City of Chicago passed an ordinance prohibiting the sale of flavored liquid nicotine products. The City has wasted no time enforcing the ordinance. At the end of January 2021, the City of Chicago filed a complaint against an e-cigarette seller for selling flavored liquid nicotine products to underage Chicagoans. Although the city has filed lawsuits against vape companies before, this suit is the first to enforce the recently passed ban on flavored liquid nicotine products in the city of Chicago.