A proposal to ban all flavored vaping and other tobacco products in Maine is gaining momentum, with key lawmakers from both sides of the aisle lining up behind the bill.
The legislation sponsored by State Sen. Jill Duson is supported by House Speaker Rachel Talbot Ross and Senate President Troy Jackson, according to Union Leader.
It was printed on Friday, revealing details of the proposal for the first time. Committee meetings and public hearings will be scheduled in the coming weeks.
The measure would ban the use of all flavors in all vaping and other tobacco products sold in Maine, other than tobacco flavor. The ban would also include menthol.
Bill supporters say that the flavors are added to the products to attract teens and get them hooked on nicotine, even though vaping products are illegal for those under 21 to purchase.
Opponents say it would simply drive people out of state to buy flavored tobacco, which they argue should be available to adults who turn to vaping as a way to quit smoking.
Several cities in Maine have already banned flavored tobacco products.
Bar Harbor become the fifth town in the U.S. state to ban flavored tobacco products earlier this month.
The U.S. Food and Drug Administration issued marketing denial orders (MDOs) for two menthol e-cigarette products currently marketed by R.J. Reynolds Vapor Company under the Vuse Solo brand.
Reynolds is expected to challenge the order.
The currently marketed products include the Vuse Replacement Cartridge Menthol 4.8% G1 and the Vuse Replacement Cartridge Menthol 4.8% G2, according to a statement. The company may resubmit applications or submit new applications to address the deficiencies for the products that are subject to these MDOs.
The FDA evaluates premarket tobacco product applications (PMTAs) based on a public health standard that considers the risks and benefits of the product on the population as a whole.
“After reviewing the company’s PMTAs, the FDA determined that the applications lacked sufficient evidence to demonstrate that permitting the marketing of the products would be appropriate for the protection of the public health, which is the applicable standard legally required by the 2009 Family Smoking Prevention and Tobacco Control Act.
Specifically, the evidence submitted by the applicant did not demonstrate that its menthol-flavored e-cigarettes provide an added benefit for adult smokers relative to tobacco-flavored e-cigarettes.
In October last year, the FDA issued MDOs for several menthol-flavored vaping products marketed by Logic Technology Development. It was the first time the FDA has issued MDOs for menthol products after receiving a scientific review.
A few days after the order was issued, Logic obtained a court order from the U.S. Circuit Court of Appeals for the Third Circuit that temporarily stayed the order.
A U.S. federal judge has thrown out a tobacco industry lawsuit against California’s statewide ban on the sale of flavored vaping and other tobacco products, reports Law360.
On March 15, Judge Cathy Ann Bencivengo rejected the plaintiffs’ claim that the measure would unfairly discriminate against out-of-state businesses. Bencivengo argued that the contested law applies to sales only; manufacturers are still permitted to manufacture flavored tobacco products in California. Most manufacturers of flavored tobacco products are located outside California.
R.J. Reynolds and other tobacco companies sued California after voters approved the ban in a November referendum, claiming the law violates the federal Tobacco Control Act (TCA), as well as the U.S. Constitution’s commerce clause.
The law was originally passed by the state legislature but didn’t take effect after industry opponents gathered enough signatures to put the issue on the November ballot.
In rejecting the TCA claim, Bencivengo cited a Ninth Circuit ruling in March 2022 that upheld a Los Angeles County ban on flavored tobacco products. The tobacco industry lawsuit also doesn’t meet the standards for arguing a state law discriminates against or unduly burdens interstate commerce, she argued.
The court also rejected the tobacco companies’ claim that out-of-state manufacturers of flavored tobacco products would be forced to change their operations to the tune of “tens of billions of dollars” to comply with the law’s new standards for tobacco products, an undue burden on interstate commerce.
California’s flavor ban doesn’t set new standards for the manufacture or marketing of tobacco products that depart from federal regulations, Bencivengo said. And financial losses for the tobacco industry alone are “not excessive enough for the Court to find that the ban substantially burdens interstate commerce,” she added, citing the law’s aims to protect public health.
The TCA also gives states the authority to “opt out of the market for flavored tobacco products,” Bencivengo said in the ruling, which does not allow the tobacco companies to file an amended complaint.
There is a flurry of flavor bans going on in Maine. In a unanimous vote by the town council, Bar Harbor has become the fifth town in the U.S. state to ban flavored tobacco products.
The new Bar Harbor ordinance takes effect June 1, 2023, and will end the sale of tobacco products with “any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, dessert, alcoholic beverage, herb or spice,” according to WMTW.
Legislation to create a statewide ban has been introduced in Augusta, which is expected to be taken up this session.
Federal law doesn’t block a ban on sales of flavored vaping products, menthol cigarettes and other flavored tobacco products in Edina, Minn., the Eighth Circuit ruled Monday in a case brought by R.J. Reynolds Tobacco Co. and related companies, according to Bloomberg Law News.
The appeals court affirmed a lower-court ruling that kept the ban in place, on the same day that the U.S. Supreme Court declined to hear a tobacco company challenge to a similar law in Los Angeles.
The unanimous panel of the U.S. Court of Appeals for the Eighth Circuit joined other federal appeals courts in holding that a local ban on tobacco products is constitutional.
The U.S. Supreme Court on Feb. 27 declined to hear an appeal by three Reynolds American Inc. subsidiaries seeking to overturn the county of Los Angeles ban on flavored tobacco products, reports Law360.
R.J. Reynolds Vapor Co., American Snuff Co. and Santa Fe Natural Tobacco Co. had petitioned the high court in October to take another look at the case after the full 9th Circuit upheld a lower court’s dismissal of the suit.
The RAI companies said the 9th Circuit had twice before erred in allowing sales bans at the state and local level that were preempted by federal law.
While the federal Tobacco Control Act grants state and local municipalities broad authority to regulate the sale of tobacco products, it does not allow them to completely prohibit the sale of those products for failing to meet state or local tobacco product standards, the companies argued.
In dismissing their initial suit, District Judge Dale S. Fischer in 2021 found that the ban doesn’t regulate tobacco product standards. The judge said the ordinance is protected by the federal law’s preservation clause, which allows states and localities to prohibit the sale of tobacco products even if those bans are stricter than federal law.
The companies appealed, calling the ban unconstitutional and saying state and local governments can’t bar the sale of tobacco products because they disagree with federal tobacco standards.
L.A. County countered that the ban doesn’t pose an obstacle to federal policy since the FDA announced it intends to ban menthol cigarettes and all flavored cigars.
Flavor bans are creating black markets that cost U.S. states a massive amount of money in lost taxes, according to the latest research.
Just go to any online consumer-to-consumer website and flavored vaping and other tobacco products are for sale in states with flavored tobacco bans. A quick search for menthol on sites such as Craigslist and OfferUp in California or Massachusetts, where flavored products are banned, will yield results for every flavor of vaping product from apple to vanilla for sale. You can also find nearly every brand of menthol cigarettes for purchase on the online black market.
New York, New Jersey and Rhode Island also have barred the sale of flavored vaping products. Massachusetts and California banned all flavored tobacco items, including flavored cigars, cigarettes and vaping goods. Since California’s flavored tobacco ban went into effect on Dec. 21, one week after the U.S. Supreme Court blocked R.J. Reynolds Tobacco Co.’s contention that the new state law conflicted with federal law, the state’s black market for flavored tobacco products has grown exponentially.
Stat News reported that in January it visited 24 California vape shops throughout Oxnard, Ventura, Pasadena, El Monte, Carson and West Hollywood—all of which have had bans on flavored vapes on the books for at least a year and most for two or more years. Seventeen of the shops, or 70 percent, were selling the products anyway. In Oxnard, where the news group visited five shops, none of the stores sold flavored vapes.
States in the proximity of states that have enacted flavor bans have some of the highest tobacco smuggling rates in the country. A report by the nonpartisan Tax Foundation found that New York has the highest inbound smuggling activity, with an estimated 53.5 percent of cigarettes consumed in the state deriving from smuggled sources in 2020. New York is followed by California (44.8 percent).
New Hampshire has the highest level of net outbound smuggling at 52.4 percent of consumption. This is likely due to the state’s relatively low tax rates and proximity to states with strict tobacco regulations and high taxes. The report said the move by other Northeast states to raise cigarette taxes and ban certain tobacco products have made cigarette smuggling a lucrative criminal initiative.
“People respond to incentives,” said Adam Hoffer, the Tax Foundation’s director of excise tax policy. “As tax rates increase or products are banned from sale, consumers and producers search for ways around these penalties and restrictions.”
Last year, JAMA Internal Medicine published a study about the impact of banning flavored tobacco products in Massachusetts. The study found that the sale of flavored tobacco decreased following the ban. However, when comparing sales in Massachusetts with sales across 27 other states, the authors found that sales had decreased more in Massachusetts than in the control states.
“Such a result would indicate that the flavor ban has been a success. Unfortunately, the study left out a very important piece of information: cross-border trade,” Ulrik Boesen, also with the Tax Foundation, stated at the time. “The end result of the ban, in fact, is that Massachusetts is stuck with the societal costs associated with consumption while the revenue from taxing flavored tobacco products is being raised in neighboring states.”
A 2022 report from the Massachusetts Multi-Agency Illegal Tobacco Taskforce found that in 2021, state police and the Department of Revenue seized more than 5,000 packs of cigarettes and more than 100,000 vapor products. It also details multiple investigations and prosecutions, including ones leading to sentences of six months to a year. Some of these were for smuggling that predate the flavor ban, but others clearly involve it.
For example, the report notes an ongoing investigation into a February 2022 seizure of more than 5,000 flavored e-cigarettes as well as a motor vehicle stop that netted “a large quantity of untaxed flavored ENDS [electronic nicotine-delivery system] products, cigars, smokeless tobacco and cigarettes” representing $21,000 in unpaid taxes. “As it happens, looking at the New England region as a whole confirms that the flavor ban did not work as intended. Sales moved around rather than disappeared, and the ban evidently did not impact consumption,” stated Boesen. “Total sales for the region decreased by slightly more than 1 percent comparing the 12 months preceding the ban to the 12 months following the ban—largely comparable to the national sales trends.”
The city council in Sheridan, Wyoming, will meet Tuesday, February 21 for their regularly scheduled business meeting instead of Monday due to the President’s Day holiday. According to Sheridan Media, one of the items the Council will consider is an ordinance pertaining to vaping and tobacco use by minors in the City.
Under the proposed ordinance, any minor found possessing tobacco or electronic cigarettes (vaping devices) would be subject to a tiered system of fines through Municipal Court.
There will be a public hearing prior to the Council considering the ordinance on first reading. There will also be a public hearing and subsequent first-reading consideration of an ordinance regarding drug paraphernalia within the City. The City Council will meet Tuesday night at 7 in Council Chambers on the third floor of Sheridan City Hall.
A new House bill would require the FDA to update its enforcement guidance to prioritize its enforcement against disposable electronic nicotine delivery system (ENDS) products.
U.S. Rep. Sheila Cherfilus-McCormick (D-Fla.) introduced the bill that would also close a legal loophole that allows for the sale of flavored e-cigarettes if the delivery device is disposable.
“Too many of our youth are forming nicotine addictions, increasing their risk of future addiction to other drugs,” Cherfilus-McCormick said in a news release. “I am even more troubled by the fact that Chinese manufacturers and suppliers are flooding the U.S. market with unregulated, harmful substances that are altering our children’s brain development and lives, according to a release.
The bill, known as HR 901, was referred last week to the House Committee on Energy and Commerce for review and consideration. The bill wouldn’t ban disposable vapes or give the FDA additional authority if passed.
The bill could find support from some House members and tobacco companies. Last week, R.J. Reynolds filed a formal FDA citizen petition asking the agency to prioritize enforcement against disposable vapes.
RAI Services Company submitted a citizen petition asking the U.S. Food and Drug Administration to adopt a new enforcement policy directed at “illegally marketed disposable electronic nicotine delivery system” (ENDS) products.
The petition was filed on Feb. 6 and posted by the FDA to Regulations.gov for public comment on Feb. 8.
RAI Services and R.J. Reynolds Vapor Company, the maker of Vuse e-cigarettes, are owned by BAT. Vuse is the most popular brand in the c-store segment, according to Neilsen data.
“As the Agency well knows, use of ENDS products in the United States has shifted to disposable products. And a new enforcement policy, one that is specifically directed at these disposables that are on the market illegally, is needed to better protect public health,” the petition states.
Reynolds requested that the FDA prioritize enforcement for:
Any flavored disposable ENDS (except for tobacco- or menthol-flavored products);
Any disposable ENDS containing nicotine derived from any source other than tobacco that lacks premarket authorization;
Any disposable ENDS containing nicotine derived from tobacco that was not on the market as of August 8, 2016, or for which the manufacturer either failed to submit an application by September 9, 2020, or submitted a PMTA to FDA by that deadline, but received a negative action that is not being challenged in court;
Any disposable ENDS for which the manufacturer has failed to take (or is failing to take) adequate measures to prevent minors’ access; and
Any disposable ENDS targeted to, or whose marketing is likely to promote use by, minors.
Reynolds does not sell disposable vapes or vaping products in flavors other than tobacco or menthol. The U.S. Court of Appeals for the Fifth Circuit granted an administrative stay of an FDA marketing denial order (MDO) for two R.J. Reynolds Vapor Co. menthol flavored refill pods.
“Such a policy,” writes Reynolds regarding its desired enforcement priorities, “will close an existing loophole in FDA’s current tobacco enforcement efforts, especially when it comes to youth.”