Star Scientific — manufacturer of the dissolvable tobacco products Ariva and Stonewall — has announced that it is poised to market these products as modified risk.  To our knowledge, Star Scientific was the first company to submit an application to FDA to market its products as having a lower risk of heath ailments resulting from the use of tobacco.

On March 28, 2011, Representative Henry Waxman, the architect of the Tobacco Control Act giving the FDA authority to regulate tobacco products, sent a letter to FDA Commissioner Margaret Hamburg suggesting that the FDA extend the ban on flavored cigarettes to flavored cigars that have purportedly been designed to “circumvent” the flavored cigarette prohibition.

We reported last month that the United States Supreme Court was considering a challenge to New York’s escrow statute in the Freedom Holdings case.  The Supreme Court recently refused to consider the challenge, thereby dismissing the last major challenge to the escrow statutes enacted under the MSA.

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A bill is currently pending before the Nebraska legislature that would impose significant new requirements for nonparticipating manufacturers to the MSA and relating to tribal sales.  Legislative Bill 590, which was introduced on January 19, 2011 and reported from the legislature’s revenue committee (as amended) on April 7, 2011, also would impose stringent new requirements regarding the taxation and sale of tobacco products.  The bill appears to be spearheaded by the Nebraska Attorney General, who is co-chair of the National Association of Attorneys General Tobacco Committee.

With respect to nonparticipating manufacturers, the Nebraska bill: