How many tobacco violations can a retailer be charged with for each transaction? On March 20, 2018, the U.S. Court of Appeals for the D.C. Circuit decided Orton Motor, Inc. v. U.S. Dep’t of Health & Human Servs., No. 16-1299 (D.C. Cir.), upholding the FDA Center for Tobacco Products’ (“CTP”) practice of counting multiple violations, even if all violations occurred within a single consumer transaction.

In a pending vapor industry challenge to the FDA’s Deeming Regulations, on March 22, 2018, the Court permitted several anti-tobacco advocacy and public health groups to intervene in the litigation as Codefendants and, at the same time, stayed the case pending the decision of the U.S. Court of Appeals for the D.C. Circuit in Nicopure Labs, LLC, et al. v. FDA, et al., No. 17-5196 (D.C. Cir.). The case is Cyclops Vapor 2, LLC, et al. v. FDA, et al., No. 2:16-cv-00556 (M.D. Ala.).

With a merits decision anticipated in a cigar-industry challenge to the Deeming Regulations, will other Courts have the opportunity to decide similar challenges? The FDA has suggested “no,” in a motion to transfer filed on March 19, 2018.

Menthol cigarettes have been around since the 1920s. Will New Jersey become the first State to ban them?

Pending before the New Jersey Legislature are Assembly Bill No. 2185 (primary sponsor Del. Herb Conaway, Jr. [D-Dist. 7]) and Senate Bill No. 1947 (primary sponsors Sen. Joseph F. Vitale [D-Dist. 19] and Sen. Robert W. Singer [R-Dist. 30]). The bills are identical. If enacted, they would “include[] menthol and clove cigarettes in the current prohibition against the sale and distribution of flavored cigarettes.”

Over the last few weeks, the vapor industry plaintiffs and a number of supporters have filed briefs in an appeal of a decision upholding the FDA’s Deeming Regulations.  On July 21, 2017, a federal district court rejected the industry plaintiffs’ challenge, and the case is now on appeal to the U.S. Court of Appeals for the D.C. Circuit.

On January 25, 2018, the United States Department of Justice (“DOJ”) announced a new policy that bars DOJ from using its enforcement authority to convert federal agency guidance documents into binding rules.  The policy follows a November 16, 2017 memorandum by Attorney General Jeff Sessions indicating that agencies should not establish binding obligations through guidance documents, which can be viewed as an attempt to subvert the notice-and-comment rulemaking process that is required when agencies create rules and regulations. 

In July 2017, California Attorney General Xavier Becerra filed a lawsuit against a Canadian cigarette manufacturer, Grand River Enterprises Six Nations (“Grand River”), for failing to comply with California laws governing nonparticipating tobacco product manufacturers (“NPMs”). The lawsuit alleges that Grand River, an NPM, sold hundreds of millions of cigarettes in California in 2014, 2015, and 2016, and failed to make escrow payments of over $13 million.

Pending before the New Jersey Legislature is Assembly Bill No. 1586, which, among other things, would “impose[] the New Jersey Tobacco Products Wholesale Sales and Use Tax on electronic cigarettes.” New Jersey does not currently impose excise taxes on electronic cigarettes. The bill has been referred to the Assembly Health and Senior Services Committee, where it remains under consideration.

Another challenge from the cigar industry has been filed against the FDA’s Deeming Regulations. Among the plaintiffs are a premium cigar retailer/lounge, a premium cigar manufacturer, and a non-profit association comprised of premium cigar manufacturers and retailers. The case is En Fuego Tobacco Shop LLC, et al. v. U.S. Food & Drug Administration, et al., No. 4:18-cv-00028 (E.D. Tex.).

A series of challenges to the Deeming Regulations has recently been filed by several vapor-product manufacturers, retailers, and a non-profit supporting the industry. These are constitutional challenges, advanced with representation from the Pacific Legal Foundation (“PLF”). The cases are Rave Salon, Inc. v. Gottlieb, et al., No. 3:18-cv-237 (N.D. Tex.); Hoban, et al. v. Food & Drug Administration, et al., No. 0:18-cv-269 (D. Minn.); Moose Jooce, et al. v. Food & Drug Administration, et al., No. 1:18-cv-203 (D.D.C.).