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 …

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.

The U.S. Court of Appeals for the Third Circuit will review a preliminary injunction against Philadelphia’s enforcement of an ordinance banning the sale of certain flavored tobacco products.

Will a preliminary injunction against Philadelphia’s flavored tobacco ban stand? The U.S. Court of Appeals for the Third Circuit will have the opportunity to decide in Cigar Association of America, et al. v. City of Philadelphia, et al., No. 20-3519 (3d Cir.), appealed from, No. 2:20-cv-03220 (E.D. Pa. Nov. 13, 2020).

On December 9, 2020, the Tennessee Department of Revenue issued its Notice #20-21, on the subject of the State of Tennessee’s excise tax on other tobacco products or “OTP”.  The Notice notes that OTP is defined as “cigars … manufactured tobacco and snuff of all descriptions whether made of tobacco or any substitute for tobacco.”

December 15 – 16, 2020

Agustin E. Rodriguez will be presenting on a panel focused on Hot Button Issues and Trends in State and Local Government Tobacco Regulation and Enforcement as part of the Food and Drug Law Institute’s (FDLI) virtual Enforcement, Litigation, and Compliance Conference on December 15-16. This…

By Robert Claiborne, Dascher Pasco & Bryan Haynes, Troutman Pepper Hamilton Sanders LLP

Did the FDA violate the Constitution when it issued its rule Deeming Tobacco Products to Be Subject to the Federal Food, Drug, & Cosmetic Act, 81 Fed. Reg. 28,973 (May 10, 2016) (the “Deeming Rule”)? No, according to a recent decision from the U.S. Court of Appeals for the D.C. Circuit.

As many in the tobacco industry know, there is a growing trend among state and local governments to prohibit or restrict the sale of flavored tobacco or nicotine products. Some governments are focusing on narrow subsets of flavored tobacco or nicotine products, like vapor products or electronic cigarettes, while others are intent on a broader prohibition or restriction that might include more traditional products like cigarettes, cigars, or smokeless tobacco. At the state level, Attorneys General have been at the forefront of the ensuing legal battles over this type of legislation.

On Friday, November 13, 2020, a federal district court entered a preliminary injunction against the City of Philadelphia’s Ordinance 180457, which purported to ban the sale of flavored tobacco products, with minor exceptions.  As in all cases where a preliminary injunction is entered, the court found that the Plaintiffs demonstrated a likelihood of success on the merits and would be irreparably harmed absent an injunction, and that the balance of the equities and the public interest weighed in favor of an injunction.

On October 27, FDA issued a new draft guidance, entitled “Tobacco Products:  Principles for Designing and Conducting Tobacco Product Perception and Intention Studies.”  The draft guidance describes the FDA Center for Tobacco Products’ proposed recommendations on designing and conducting tobacco product perception and intention studies (TPPI).  Such studies may be submitted as part of FDA tobacco product applications, including modified risk tobacco product (MRTP) applications, premarket tobacco applications (PMTA) and substantial equivalence (SE) reports.