Bryan Haynes of the Troutman Pepper Tobacco Team was recently interviewed for CSP’s Tobacco Regulatory Update. The article discusses six regulatory issues at the federal, state and local levels that could impact tobacco retailers:
- The impact of the Biden administration on tobacco laws and regulations
- FDA’s progress in reviewing requests for marketing authorization for new tobacco products
- The potential that tobacco retailers may be required to post in their stores “corrective statements” regarding the consequences of smoking
- The ongoing litigation regarding FDA’s new graphic health warnings for cigarettes.
- Potential flavor bans.
- Potential excise tax increases.
Regarding the new administration, Haynes noted that there are “limited precedents” for how a change in administration impacts FDA regulation, given that FDA’s Center for Tobacco Products has only existed since 2009. However, Haynes noted that the change in control in Congress could have a bigger impact on tobacco regulations in general: “There are things that didn’t happen over the last four years that I think very well could happen over the next four to eight. They all have a higher chance of moving forward.”
On retail corrective statements, Haynes noted the First Amendment implications of such a requirement, particularly because there is no allegation that retailers have acted culpably. Haynes noted: “Retailers, I think, still have a legitimate concern. If a customer walks into a store and sees an ad that effectively says ‘Don’t buy this product;’ it’s a problem.”
The article discusses the ongoing uncertainty regarding graphic warning labels for cigarettes, which were part of the original 2009 Tobacco Control Act. The original warnings were not implemented after a successful challenge in court and the current warnings are also under First Amendment challenge. Haynes noted that the uncertainty over graphic health warnings will not be resolved until the courts make a “conclusive determination” as to whether the warnings are consistent with the First Amendment.