Alibaba International Station announced that, beginning May 1, it will no longer allow the sale of vaping products. The cross-border trade B2B e-commerce platform’s ban will include cartridges, e-liquids, hardware and all other vaping related products.
After the document was issued, many e-cigarette brands said that they will actively implement the regulatory requirements and stop the production of e-cigarettes with fruit flavors in the domestic market, according to dayday News. Therefore, under the new regulations, the prices of e-cigarettes have been rising. Many brands raised the price of their e-cigarettes with various fruit and soda flavors, with prices increasing between 20 yuan ($3.14) to 30 yuan ($4.71).
According to a report released by iiMedia Research, the retail sales of the global new tobacco market reached 360.5 billion yuan in 2021, an overall increase of 25.6 percent, while China’s domestic sales increased by 73 percent. In addition, according to the Blue Book of the Electronic Cigarette Industry in 2021, in terms of export, the total output value of electronic cigarettes exports reached 138.3 billion yuan, and there are more than 1,500 e-cigarette manufacturers in China.
In a 2-1 decision, a panel of the U.S. Court of Appeals for the Ninth Circuit held that the Family Smoking Prevention and Tobacco Control Act neither expressly nor impliedly preempts Los Angeles County’s ban on the sale of flavored tobacco products.
On March 18, 2022, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Los Angeles County’s flavored tobacco ban is not preempted by the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (June 22, 2009) (the “TCA”). Judge Lawrence VanDyke wrote the majority opinion, which was by joined by Judge Karen E. Schreier of the U.S. District Court for the District of South Dakota sitting by designation on the Ninth Circuit. Judge Ryan D. Nelson dissented. The case is R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 20-55930 (9th Cir. Mar. 18, 2022).
As previously reported (here and here), the litigation focuses on a Los Angeles County ordinance making it unlawful for tobacco retailers/licensees to sell flavored tobacco products or components, parts, or accessories intended imparting a characterizing flavor to a tobacco product or nicotine delivery device. Enforcement of the ban was to begin May 1, 2020, and a few days later the plaintiffs initiated litigation in the U.S. District Court for the Central District of California. The plaintiffs contended that the County’s flavored tobacco ban is expressly preempted under the TCA, 21 U.S.C. § 387p(a), or impliedly preempted as an obstacle to the fulfilment of Congress’ purposes and objectives in enacting the TCA. At the trial level, Judge Dale S. Fischer of the U.S. District Court for the Central District of California held that the County’s flavor ban is not preempted. She denied the plaintiffs’ requests for a preliminary injunction and for summary judgment and dismissed the case for failure to state a claim.
The plaintiffs appealed to the Ninth Circuit. The Washington Legal Foundation filed an amicus brief in support of the plaintiffs. The State of California filed an amicus brief in support of Los Angeles County, as did a number of public health, medical, and local government organizations.
Judge VanDyke’s Majority Opinion
Judge Lawrence VanDyke
Judges VanDyke and Schreier affirmed Judge Fischer’s holdings, agreeing that the County’s flavored tobacco ban is not preempted.
On the issue of express preemption, the majority addressed 21 U.S.C. § 387p(a), including its “preservation clause” (subsection (1)), “preemption clause” (subsection (2)(A)), and “savings clause” (subsection (2)(B)).
In the majority’s view, [T]he TCA’s text sandwiches limited production and marketing categories of preemption between clauses broadly preserving and saving local authority, including any “requirements relating to the sale” of tobacco products. This unique “preservation sandwich” enveloping the TCA’s preemption clause reveals a careful balance of power between federal authority and state, local, and tribal authority, whereby Congress has allowed the federal government to set the standards regarding how a product would be manufactured and marketed, but has left states, localities, and tribal entities the ability to restrict or opt out of that market altogether.
As to the preemption clause, the majority held the County’s flavor ban is not a preempted “requirement which is different from, or in addition to, any requirement under the provisions of [the Food, Drug, & Cosmetic Act’s ‘Tobacco Products’ Subchapter] relating to tobacco product standards.” Seeid. § 387p(a)(2)(A). The majority read that clause’s reference to preempted “tobacco product standards” as “pertaining to the production or marketing stages up until the actual point of sale.” Thus, the majority concluded “that the phrase ‘tobacco product standards’ in the TCA’s preemption clause does not encompass the County’s sales ban.”
Ninth Circuit Court of Appeals
The majority continued, opining that even if the County’s flavor ban were covered by the preemption clause, it would still survive preemption as a permissible “requirement[] relating to the sale . . . of[] tobacco products [to] individuals of any age” under the savings clause. Seeid. § 387p(a)(2)(B). The majority opined that “[a] ban on the sale of flavored products is, simply put, a requirement that tobacco retailers or licensees throughout the County not sell flavored tobacco products.” As to the “of any age” language in the savings clause, the majority considered this to “suggest[] that state and local governments are not limited to enacting only age-based rules, but rather can enact regulations for people ‘of any age’—in other words, for everyone.
“Because the County banned the sale of flavored tobacco products to all individuals ‘of any age,’ the savings clause squarely applies.”
Holding that the County’s flavor ban also survived the claim of implied preemption, the majority said that the ban is not “‘an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ expressed in the TCA” as “the TCA does not mandate that certain flavors must remain available for sale, and expressly preserves local authority to enact sales regulations more stringent than the TCA.” (Citation omitted.)
Judge Nelson’s Dissenting Opinion
Judge Ryan D. Nelson
Dissenting, Judge Nelson opined that he would have found Los Angeles County’s flavored tobacco ban expressly preempted.
According to Judge Nelson, the focus of the County’s ban on the point of sale does not remove it from the preemption clause’s coverage as a “requirement which is different from, or in addition to, any requirement under the provisions of [the Food, Drug, & Cosmetic Act’s ‘Tobacco Products’ Subchapter] relating to tobacco product standards.” Seeid. § 387p(a)(2)(A). Judge Nelson referenced two preemption decisions of the Supreme Court addressing other statutory schemes, where the Court reversed the Ninth Circuit’s distinction of a State or local sales limitation from a preempted product standard. SeeNat’l Meat Ass’n v. Harris, 565 U.S. 452 (2012); Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004). He also considered the majority’s reasoning to rely too heavily on the TCA’s preservation clause, which expressly states that it applies “[e]xcept as provided in” the preemption clause. See21 U.S.C. § 387p(a)(1). The savings clause did not save the County’s flavored tobacco ban from preemption, as Judge Nelson read that clause only to “save[] for states the authority to enact age requirements.”
Judge Nelson concluded,
The majority reads these three clauses as a “preservation sandwich served up by the TCA.” Majority at 25. But in holding that Los Angeles’s ban is not preempted, the majority has actually folded itself into a pretzel. The majority argues that the preemption clause is “hardly useless,” because the federal government is still the only one that can technically set standards. Majority at 30–31. But under the majority’s reading, states and municipalities can ban anything made with standards that they don’t like, and thus can “opt out of [the federal standards]” entirely. Id. This is the very reasoning that the Supreme Court says “make[s] a mockery” of a preemption clause. Nat’l Meat, 565 U.S. at 464. By construing the TCA’s preemption clause to allow sales bans that defeat its entire purpose, the majority does just that.
(Alterations in original.)
References in the Eighth Circuit
Business concept about U.S. Eighth Circuit with sign on the piece of paper.
The Ninth Circuit’s majority and dissenting opinions have since been referenced by the parties to an appeal pending before the U.S. Court of Appeals for the Eighth Circuit. R.J. Reynolds Tobacco Co., et al. v. City of Edina, et al., No. 20-2852 (8th Cir.), on appeal fromNo. 0:20-cv-01402 (D. Minn. Aug. 31, 2020) (granting the City’s motion to dismiss and denying the plaintiffs’ motion for preliminary injunction). That case involves similar TCA preemption claims regarding the City of Edina, Minnesota’s prohibition on the sale of flavored tobacco products. It was argued before Judges Steven M. Colloton, Roger L. Wollman, and Jonathan A. Kobes on May 12, 2021.
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It remains to be seen whether the plaintiffs will seek further review of the Ninth Circuit’s decision en banc or before the Supreme Court.
For the time being, the Ninth Circuit’s decision is significant not only for Los Angeles County but also other jurisdictions within the Ninth Circuit that have enacted (or may enact) similar flavored tobacco bans. For illustration of the decision’s significance within the Circuit, as of the filing of California’s amicus brief on May 14, 2021, “at least 71 localities” in the State “ha[d] prohibited the sale of all flavored tobacco products,” and the State Legislature had passed similar legislation subject to a referendum to be held in November 2022. The majority’s holding and essential reasoning in Los Angeles County will be binding upon lower federal courts within the Circuit – and panels of the Ninth Circuit – addressing materially-similar TCA-preemption cases.*
It will also be interesting to see how the Eighth Circuit resolves the City of Edina case, including whether (and to what extent) that court considers Judge VanDyke’s majority opinion – or Judge Nelson’s dissenting opinion – more persuasive.
* Notably, there is a pending Ninth Circuit appeal involving claims that the TCA preempts San Diego County’s flavored tobacco ban, R.J. Reynolds Tobacco Co., et al. v. San Diego Cnty., et al., No. 21-55348 (9th Cir.), on appeal fromNo. 3:20-cv-01290 (S.D. Cal. Mar. 29, 2021) (granting the County’s motion to dismiss and denying the plaintiffs’ motion for preliminary injunction); however, that case has been administratively closed since May 28, 2021, and it is set to remain administratively closed until May 24, 2022
For the second time, the U.S. House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, a bill that would end the federal prohibition on cannabis by removing it from the list of banned controlled substances. The bill is expected to face strong headwinds in the Senate, however.
The bill that passed the House with 220 “yea” votes to 204 “nay” votes would end the federal ban, but leave legalization up to the states. The legal marijuana industry generated $25 billion in sales last year, a 43 percent increase over 2020, and is expected to hit $65 billion in 2030, according to Forbes.
House Majority Leader Steny Hoyer said this is an important issue because the majority of Americans want cannabis to be legal. He also said that he used to support tough-on-marijuana policies earlier in his political career. “I was a supporter of the war on drugs, I’ve been here a long time… but it’s not a gateway drug, I’ve been convinced of that,” said Hoyer. “Marijuana has been legalized in 40 percent of our states, and medical marijuana is legal in 36 states. This is not out of the ordinary, this is something Americans tells us is an appropriate thing to do.”
Cannabis is legal for adult-use in 19 states and for medical use in 36 states. This bill would end the federal ban, but leave legalization up to the states. The MORE Act is thought to have an uphill battle in the Senate. The last time the House passed the bill the Senate did not take it up to a vote.
There are also competing bills within the House. Nancy Mace, the freshman Representative from South Carolina’s coastal swing district spanning Charleston to Hilton Head, introduced the States Reform Act, a bill that would end the federal government’s 85-year prohibition on marijuana, last year. Her bill, the first comprehensive Republican version to end cannabis prohibition, is expected to have its own hearing in April. Mace voted no on the MORE Act.
Mitch Zeller, director of the U.S. Food and Drug Administration’s Center for Tobacco Products (CTP), will officially retire on April 8, Zeller confirmed during the 103rd annual TMA meeting this week.
Today, the FDA confirmed to Vapor Voice that Michele Mital will serve as acting director of the CTP when Zeller retires. Mital has served as the deputy director of the CTP since 2018, according to the FDA.
In this position, Mital is responsible for assuring that CTP accomplishes its public health goals and for operationalizing the Center’s vision and mission as it implements the Family Smoking Prevention and Tobacco Control Act.
MItal will have some big shoes to fill. Zeller has been working on FDA issues for more than 30 years. He began his career as a public interest attorney in 1982 at the Center for Science in the Public Interest.
The news was first reported Wednesday afternoon in a tweet by FDA Tracker and confirmed by Filter reporter Alex Norcia after speaking with FDA sources. No formal announcement has been made.
This story will be updated when more information is available.
A key U.S. House of Representatives committee on Wednesday formally advanced a bill to federally legalize marijuana to the floor, making in order a number of amendments and blocking others as part of a final rule. A full chamber vote is expected on Friday.
The House Rules Committee took up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, discussing proposed revisions, mostly from GOP lawmakers seeking to insert additional restrictions into the reform measure, according to Marijuana Moments.
This the second time the MORE Act has made it to floor. Last year, the bill made it to the floor but was sent back for committee review.
The MORE Act, sponsored by House Judiciary Committee Chairman Jerrold Nadler, would remove marijuana from the list of federally controlled substances, promote equity in the industry and impose a federal tax on marijuana products to fund various initiatives.
At the start of Wednesday’s hearing, Rules Committee Chairman Jim McGovern said that the legislation would “address our nation’s failed approach to the war on drugs” and “put racial justice at the heart of our nation’s federal cannabis policy.”
He noted racial disparities in marijuana enforcement, emphasizing that “none of us should be OK with a system that treats people differently based on the color of their skin” and “no life should be destroyed by decades of failed policy.”
“It’s past time that we show the moral courage to do something about it,” McGovern said.
More than two years after banning sales of vaping products, Walmart is testing a potential ban of traditional tobacco products.
The world’s largest retailer will stop sales of tobacco products in some of its more than 5,000 stores across the United States, the company said on Monday.
Walmart did not disclose how many stores would be affected by the move, but said it would not be exiting the category entirely.
The markets in which cigarettes are being removed from stores include California, Florida and New Mexico, according to the Wall Street Journal, which first reported the news, according to Reuters.
Several Democratic U.S. senators have urged Walmart and several other retailers to stop selling all tobacco products.
A new law in Malaysia that would ban the use of all vaping and other tobacco products for those who were born after 2005, will be presented to Parliament in July, said the country’s health minister, Khairy Jamaluddin.
This means that Malaysians who are 17 years old today will not be able to legally buy tobacco, vape, or e-cigarettes next year when they turn 18, the current legal age for smoking in Malaysia, or ever, in their lifetime. Neither will subsequent generations be ever permitted to purchase cigarettes and other smoking products.
Jamaluddin said that the bill was currently being finalized by the Attorney-General’s Chambers.
Credit: Krzysztof Wiktor
“I think in one to two weeks it will be completed, and then I can present it to the Parliamentary Select Committee on Health and Technology,” he told the media after the launch of the national-level community health agent, MyCHAMPION, according to Malay Mail.
Earlier, in his speech, Khairy said that the introduction of the new law related to cigarettes was one of the efforts of the Ministry of Health (MOH) in intensifying the smoking cessation campaign among Malaysians.
“We will introduce a new law so that it is a legal offence to sell cigarettes to anyone born after 2005. But I think this is the first step towards us ending smoking for a generation. It is a generational end game,” he said. “Indeed enforcement will be a challenge. Nothing to stop these young people from asking adults to buy cigarettes for them.”
The government previously announced during the tabling of Budget 2022 plans to tax vape and e-cigarette liquids containing nicotine, essentially illegalizing vape products that are presently under a grey area of regulation.
It should be noted that tabling a bill means to introduce the bill to legislature in every country but the United States, where tabling means to place an already introduced bill on hold.
The UK’s Department for Health and Social Care’s (DHSC) review into the Tobacco and Related Products Regulations (TRPR) laws which govern sales of nicotine products found that existing TRPR regulations “met their original objectives” and that they “could not be better achieved through alternative regulatory measures.”
The UK government has set itself a target of reducing the amount of UK smokers to just 5 percent of the population in the next eight years with the TRPR and other developments, such as the yet to be published Tobacco Control Plan (TCP), set to play a major role in helping to realize that ambition.
The DHSC’s view, published March 25, states the government believes in proportionate regulation of e-cigarettes, recognizing that they are not risk free. However, e-cigarettes and vaping products have been an effective tool to stop combustible cigarette smoking. Youth use is very limited, the report found.
“The current regulatory framework in TRPR aims to reduce the risk of harm to children, protect against renormalization of tobacco use, provide assurance on relative safety for users, and provide legal certainty for businesses,” the review states. “We know that a small proportion of children are experimenting with e-cigarettes, but regular child use remains consistently low in England.”
In response to the review, John Dunne, director general of the UK Vaping Industry Association (UKVIA), said that at first glance the response appears to be “status quo” and a win for the UK’s vaping sector as the review clearly states the positive impact that vaping can have in helping people to quit smoking.
“We have to remember this is only a review of all points made and some initial positions the government is taking; our hope now is that those proposals and recommendations are carried forward and manifested in the Tobacco Control Plan.” – John Dunne
“As part of the TRPR consultation we submitted a whole raft of proposals aimed at creating a better commercial and regulatory environment to make it easier for the industry to help people trying to give up smoking and it is good to see those acknowledged,” Dunne stated in a release.
The UKVIA, which promotes vaping as a less harmful alternative to smoking and its significant impact in helping smokers quit, as well as dispelling the misinformation on vaping that exists, submitted a landmark package of recommendations to the TRPR consultation, including:
The use of Government-approved expert health claims on products to address misinformation leading to misperceptions on vaping, and therefore encourage smokers to switch
Greater opportunities to engage with smokers, as current regulations restrict vaping’s ability to provide smokers with evidence-based knowledge to make informed decisions when looking to quit
The extension of certain regulations to cover additional vaping products, such as non-nicotine e-liquids, thereby ensuring a highly responsible and safe industry.
“What this tells me is that the industry is doing its job in bringing to the fore some of the things that have been holding back vaping’s ability to support the Government’s smokefree targets to full effect,” continued Dunne. “We have to remember this is only a review of all points made and some initial positions the government is taking; our hope now is that those proposals and recommendations are carried forward and manifested in the Tobacco Control Plan.”
Vape manufacturer GeekVape, the parent of Geek Bar, has written to trading standards departments in major UK cities asking them to take more action to combat the growing market for illicit vaping products.
GeekVape previously established a primary authority partnership with Oldham Council to focus on the growing issue surrounding illicit disposable products, according to Talking Retail. It has now followed this up by approaching other trading standards departments requesting their commitment to do all they can do to cut off the supply of non-compliant and counterfeit disposables.
Allen Yang, CEO of GeekVape, said it was easy to blame the manufacturer, but the truth is that illicit products are finding their way into the UK through customs and being sold in retail outlets across the country.
“It’s a huge issue for our own reputation and the vape sector as a whole,” Yang said. “Enough is enough, and there needs to be more collaboration and enforcement involving all parties including trading standards, the vaping industry, trade associations representing retailers and the medicines and healthcare products regulatory agency.”
The company has been working closely with the authorities in China to identify factories producing fake products. This has resulted in the closure of 12 counterfeit production facilities and the seizure of more than 100,000 fake products destined for the UK.
A Connecticut legislative panel on public health pushed forward Wednesday with a plan to ban the sale of flavored vaping products in an effort to reduce nicotine use by minors.
According to CT News Junkie, lawmakers have debated for the last two years without passing a proposal that would prohibit the sale of any vaping flavor other than tobacco and increase penalties for businesses caught selling nicotine products to youths.
Wednesday’s 19 to 12 vote found members of the committee split on the issue. Several lawmakers voiced concern that banning flavored vaping products could have the unintended consequence of leading nicotine consumers to more harmful combustible products like cigarettes.
Rep. Jamie Foster pointed to testimony from Yale professor Dr. Abigail Friedman suggesting the policy could increase tobacco use by minors and reduce smoking cessation by adults.
“It would be easier and significantly more comfortable to me to align with the advocates who want children to not have access to tobacco,” Foster said. “It would be easier if we could just say ‘E-cigarettes are evil’ and ban them. I wish we could. I wish the science supported that but it doesn’t.”
Vape manufacturer GeekVape, the parent of Geek Bar, has written to trading standards departments in major UK cities asking them to take more action to combat the growing market for illicit vaping products.
