Thailand’s government has rejected an initiative to legalize and regulate nicotine vaping products, opting, instead, to reconfirm the country’s ban on sales and imports of e-cigarettes, according to Vaping360.
Thailand’s ban has been in place since 2014.
The National Tobacco Products Control Committee upheld the ban in a meeting last week, and Public Health Ministry Permanent Secretary Kiattiphum Wongrajit supports the decision. The decision will go to the cabinet for formal approval, and the cabinet is not expected to overrule the decision.
Thailand’s tobacco committee has stated that the country should uphold the ban to prevent cigarette addiction by children and adolescents.
Minister of Digital Economy and Society Chaiwut Thanakamanusorn has urged the government to end its ban on vapes, which he believes offer a low-risk alternative for smokers. As recently as January, he had planned to set up a working group to study the issue and consider public opinion.
The Coalition of Asia Pacific Tobacco Harm Reduction Advocates (CAPHRA) is urging Australian politicians to debate vaping in the runup the country’s federal election on May 21.
According to the advocacy group, Australian politicians who recognize the public health potential of vaping will be rewarded with votes, “yet most remain too scared to promote the world’s most effective smoking cessation tool.”
Nancy Loucas
“Australia’s political leaders need to pull their heads out of the sand,” said Nancy Loucas, executive coordinator of CAPHRA. “Annually, over 20,000 Australian smokers die prematurely from smoking-related illnesses, and 2.3 million still smoke. Alarmingly, however, nobody wants to seriously fix successive governments’ failure to reduce tobacco harm.”
Australia is the only Western democracy that requires a nicotine prescription to vape. Further, its Department of Health’s Draft National Smoking Strategy 2022–2030 proposes additional measures to prevent smokers from switching to safer nicotine products.
Loucas suspects that tobacco tax revenues are one of the reasons that vaping has been buried in the election debate. Ongoing increases to tobacco excise have made it the fourth-largest individual tax collected by Australia’s federal government at an estimated $15 billion per financial year, according to CAPHRA.
The group notes that nearly 70 countries have adopted regulatory frameworks on safer nicotine products. All of them have reported a dramatic decline in smoking prevalence since.
“Australia is light-years behind the U.S., U.K. and New Zealand, with some key Asian countries now looking to lift their failed vaping bans. If campaigning Australian politicians really want to save lives this election, well here is their best opportunity by simply a stroke of the pen,” said Loucas.
VApril 2022, the annual awareness campaign from the U.K. Vaping Industry Association (UKVIA) that educates smokers on vaping, opened with a vaping masterclass session with experts from the vaping industry, stop-smoking services and healthcare.
For the first time, this year, the UKVIA is running a promotional campaign on social media, including an animated five-step guide to transitioning successfully from smoking to vaping; a video featuring the life-changing experience of a former smoker turned vaper; and a video of Anita Sharma addressing common concerns of smokers who are considering switching to vaping to help them quit their smoking habits.
The month will also see publication of research on the level and quality of advice that is being provided to adult smokers when considering a switch to vaping.
“We know from Public Health England that vaping is at least 95 percent less harmful than smoking, and the last 18 months has seen a massive groundswell of support from the medical and political worlds underlining how vital vaping is toward helping people to quit smoking and the overall health of the nation,” said John Dunne, director general of the UKVIA, in a statement.
“We are steadfast and determined in our mission and resolve to give smokers a real choice, underpinned by VApril 2022 and the huge support we receive from vape retail stores and other businesses across the U.K. as well as vape associations across the world.”
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.
ICCPP’s Gene Tree nano-microcrystalline ceramic vaporizer core won China CE Magazine’s Pioneer Technology Award 2021.
Launched in September 2021, Gene Tree is the first “0 powder definition” ceramic core in the vapor industry. The manufacturing process is designed to eliminate dust and thus avoids the harm caused by powder falling of ordinary ceramic cores.
The high-void porous structure of the Gene Tree core, combined with the application of food-grade lipophilic rare earth oxide, gives it excellent e-juice “guiding and locking” ability. It not only enhances stability and prolongs the product’s lifespan, but also prevents leakage, dry burns and explosions while optimizing flavor.
According to ICCPP, the product’s self-developed heating slurry is more consistent with the thermodynamic properties of porous ceramics, greatly reducing the phenomenon of core slurry. Even after 4,000 tests of dry burning at 2.5 watts, the heating film and resistance value remained intact. The service life of dry burning at 6 watts is up to five times that of other products.
China CE Magazine is an influential publication in China’s electronic consumer goods industry.
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.
