Legislators in New York are looking to pass a bill that would ban the sale of flavored e-liquid tobacco products.

Sponsored by New York State Senator Kemp Hannon, Senate Bill S8610 looks to “eliminate the temptation for young people in New York State to try flavored electronic cigarettes and in turn reduce the number of people who become regular users of tobacco products” by prohibiting the sale and distribution of flavored e-liquids used in electronic cigarettes.

There has been new activity in two of the three Deeming Regulations challenges filed by vapor-industry plaintiffs represented by the Pacific Legal Foundation (“PLF”): Moose Jooce, et al. v. Food & Drug Admin., et al., No. 1:18-cv-203 (D.D.C.), and Rave Salon, Inc. v. Gottlieb, et al., No. 3:18-cv-237 (N.D. Tex.). The cases involve challenges based on the Appointments Clause and the First Amendment of the U.S. Constitution.

U.S. Magistrate Judge Kimberly C. Priest Johnson has denied a motion to transfer the Deeming Regulations challenge in En Fuego Tobacco Shop LLC, et al. v. U.S. Food & Drug Administration, et al., No. 4:18-cv-00028 (E.D. Tex.). On June 5, the FDA appealed her decision to District Judge Amos L. Mazzant III.

The Federal Trade Commission recently issued its Cigarette Report and Smokeless Tobacco Report summarizing 2016 data about the tobacco industry.  Important observations from the Cigarette Report include:

  • The number of cigarettes that the largest cigarette companies in the United States sold to wholesalers and retailers nationwide declined from 244.2 billion in 2015 to 240.5 billion in 2016;
  • The amount spent on cigarette advertising and promotion increased from $8.30 billion in 2015 to $8.71 billion in 2016; and
  • Price discounts paid to cigarette retailers ($5.81 billion) and wholesalers ($1.44 billion) were the two largest expenditure categories in 2016. Combined spending on price discounts increased from $6.95 billion in 2015 to $7.25 billion in 2016, accounting for 83.2 percent of industry spending.

On April 24, 2018, Troutman attorneys Bryan Haynes and Paige Fitzgerald presented an American Bar Association webinar on the regulations of e-cigarettes and other Electronic Nicotine Delivery Systems (ENDS).

You may purchase the recording of Bryan and Paige’s seminar here.

A federal court has dismissed a case challenging the FDA’s allowance of the word “natural” in Natural American Spirit’s (“NAS”) product packaging and labeling. The Plaintiff lacks standing to sue under Article III, § 2, of the U.S. Constitution, which limits federal courts to deciding actual “cases” or “controversies.”

On January 30, 2018, three separate challenges to the Deeming Regulations were filed by vapor-industry plaintiffs represented by the Pacific Legal Foundation (“PLF”), each raising issues under the Appointments Clause and the First Amendment of the U.S. Constitution:

  • Moose Jooce, et al. v. Food & Drug Admin., et al., No. 1:18-cv-203 (D.D.C.);
  • Rave Salon, Inc. v. Gottlieb, et al., No. 3:18-cv-237 (N.D. Tex.); and
  • Hoban, et al. v. Food & Drug Admin., et al., No. 0:18-cv-269 (D. Minn.).

When PLF announced the filings, it characterized “[t]hese three simultaneously filed lawsuits” as an “opening salvo.” Will the FDA be able to outmaneuver the three-pronged attack?

Earlier this month, we reported on a lawsuit filed by U.S. Smokeless Tobacco Company (UST) challenging the FDA’s issuance of Not Substantially Equivalent Orders for a smokeless tobacco product.  The FDA has now moved to dismiss the lawsuit for lack of subject matter jurisdiction after rescinding the NSE orders at issue.

Bryan Haynes will moderate a panel entitled FDA implementation of Tobacco Product Pathways.  Panelists, which include the Director of the FDA’s Center for Tobacco Products Office of Science, will discuss the FDA’s implementation of tobacco product review pathways including premarket tobacco applications and modified risk tobacco product applications, as well …

Should vapor products be regulated the same, regardless of whether they contain nicotine? A bill before the Louisiana State Legislature would accomplish just that, with respect to the State’s laws on such things as retailer permits, over-the-counter sales, self-service displays, and vending machines.