A bill introduced March 25, 2016 in the Vermont legislature proposes to impose an excise tax on e-cigarettes by redefining “other tobacco products” to include any product manufactured from, derived from, or containing tobacco that is intended for human consumption, including electronic cigarettes that have not been approved by the…

The Georgia House and Senate have both approved a new law that would change nonparticipating manufacturers’ (non-signatories to the 1998 tobacco Master Settlement Agreement) responsibilities for making escrow payments for cigarette sales in the state.  The bill awaits the Governor’s signature.

The Food and Drug Administration recently issued a solicitation for proposals for a 10 port cigar smoking machine that will simulate human cigar smoking under a variety of conditions and collect smoke residue for chemical analysis.  The stated purpose of the solicitation is to increase the FDA’s capability to analyze cigar smoke products and support regulatory work for the Center for Tobacco Products.  The machine must analyze smoke under a variety of testing regimes, including ISO, CORESTA, Canadian Intense and Massachusetts Intense.

On January 28, 2016, President Obama signed the Child Nicotine Poisoning Prevention Act of 2015 (the Act) into law which requires liquid nicotine containers to be packaged in child-resistant packaging.   The Act takes effect on July 26, 2016.  Liquid nicotine containers are defined as packages containing nicotine in a solution or other form, including soluble nicotine in any concentration, and that are accessible by a consumer; but excludes sealed, pre-filled and disposable containers which are inserted into e-cigarettes, ENDS or similar products, and any product where the nicotine is not accessible by a consumer.  The Act also provides effectiveness and testing standards as set forth in the federal Poison Prevention Packaging Act. 

On December 23, 2015, the Pennsylvania Supreme Court denied several tobacco companies’ petition for appeal of a Commonwealth Court ruling that Pennsylvania is entitled to reinstatement of more than $125 million in funds under the 1998 Master Settlement Agreement (MSA) with the tobacco industry.

Much attention has been given to the impact of the FDA’s proposed deeming regulations on the e-cigarette and cigar industries.  But the deeming regulations almost certainly will give the FDA the authority to regulate much more — any product that is made or derived from tobacco and intended for human consumption.  This includes tobacco used in a waterpipe (known as a hookah).  The tobacco, known as shisha (which is usually flavored), is vaporized through the hookah pipe.

The Tobacco Team recently published an article in Smokeshop Magazine entitled “Design Patents Build Strong, Valuable Brands.”  The article discusses the strategic use of intellectual property rights as a competitive advantage in the marketplace, and particularly the previously-overlooked design patent.  A design patent protects the look and feel of an…

On February 2, 2016, the Central District of California denied class certification in a claim for false advertising related to the sale of electronic cigarettes. In re NJOY, Inc. Consumer Class Action Litigation, CV 14-428, (C.D. Cal. Feb. 2, 2016). Plaintiffs, a group of consumers, brought suit under the California Consumer Legal Remedies Act, California’s Unfair Competition Law, and Florida’s Deceptive and Unfair Trade Practices Act, alleging that: (1) NJOY engaged in a false and misleading advertising campaign conveying the message that its electronic cigarettes are safer than traditional combustible tobacco cigarettes; and (2) NJOY omitted material information from its packaging, including both an ingredient list and the potential risks associated with certain ingredients.

We are pleased to announce that Bryan Haynes, Partner at Troutman Sanders LLP, will moderate a panel entitled, “E-cigarettes post deeming—an outlook for ENDS products,” on Wednesday, October 21, 2015 from 12:10-12:40 p.m., at the 2015 FDA Regulation of Tobacco Products conference put on by The Food and Drug Law Institute.  The panelists will discuss the potential impact of the finalized deeming regulations on the spectrum of products on the market, and the public health.