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Future State Vaping Bans to Test Boundaries of Local Power

Jan. 9, 2020, 10:26 AM

Public health groups pushing new limits on electronic cigarettes flavors want states to pick up where the Trump administration left off.

The Food and Drug Administration policy announced Jan. 2 leaves the door wide open for kid-friendly flavors to remain on the market thanks to exemptions for e-liquids sold for refillable, open-tank devices. But health advocates aren’t likely to sue for a broader ban given the agency’s extensive rulemaking authority. Their plan instead? To lobby for tougher action elsewhere.

“We are calling on Congress, local and state governments to really close all of these loopholes and eliminate the sale of all tobacco flavored products, so that’s all flavored e-cigarettes, it’s menthol cigarettes, flavored cigars, and hookah,” said Michael Seilback, national assistant vice president of state public policy at the American Lung Association.

States Step In

The push highlights the role that both federal agencies and states regulators play in controlling tobacco products and could test the boundary between the two.

States, which have the power to protect public health, are expected to take a harder look at how and where vaping products can be sold—or banned outright.

Eight states were quick to issue emergency rules temporarily banning the sale of flavored e-cigarettes after health officials dubbed teen vaping an “epidemic” and vaping was linked to a string of lung illnesses and 55 deaths. The CDC has determined the illnesses are linked to THC additives in bootlegged vapes, not flavors, but the lung illness outbreak helped catalyze state action against vape products.

Legal challenges halted these emergency restrictions in all but three states—Massachusetts, Rhode Island, and Washington, according to the latest data from the Campaign for Tobacco-Free Kids.

States are now weighing additional measures, and the the Campaign for Tobacco-Free Kids says it’s specifically keeping an eye out for possible vape bans in California, New Jersey, New York, and Illinois.

Kathleen Hoke, a professor at the University of Maryland Carey School of Law and director of the Network for Public Health Law, said Maryland is also considering legislation.

Massachusetts is the only state so far to pass legislation banning retailers from selling flavored tobacco products, but Seilback expects to see bills introduced in close to half of all state legislatures in 2020.

Michael Bloomberg, the majority owner of Bloomberg Law’s parent company, has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco.

The Limits of State Power

Legal pushback from the vaping industry could define how far states can go toward curbing e-cigarette use.

While there are cases already challenging restrictions passed by cities and municipalities, public health experts say those don’t question states’ ability to prohibit e-cigarette flavors, regulate the sale and marketing of cigarettes, or prohibit them altogether

“To our knowledge, no court has ruled that states cannot prohibit e-cigarettes or prohibit flavored e-cigarettes,” Doug Blanke, founder and executive director of the Public Health Law Center.

For example, the convenience store chain Cumberland Farms Inc. sued the public health boards in six Massachusetts towns for banning the sale of all flavored tobacco products except those sold in smoking bars or smoke shops. In the case, which is making its way through the state trial court, Cumberland Farms argues the bans violate the state constitution.

The Vapor Technology Association didn’t answer questions related to lawsuits it’s brought regarding flavor bans. Lawyers that represent e-cigarette companies say the vape industry could sue states if their laws somehow change manufacturing standards for e-cigarettes or affect how a company runs its national operations. That‘s what eventually brought down a 2015 e-liquid law in Indiana.

A federal judge ruled in 2017 that parts of the law exceeded the state’s reach, including a section that required e-cigarette companies to get a certificate from an out-of-state firm.

Vape groups could also try to target state flavor bans by claiming the federal Tobacco Control Act gives the Food and Drug Administration the authority to regulate “tobacco product standards,” which could arguably include e-cigarette flavors, Azim Chowdhury, a partner at Keller and Heckman who represents e-cigarette companies, said.

But deciding how tobacco products are sold within state borders isn’t solely within the FDA’s authority, Chowdhury said, so the argument isn’t fool-proof. Challenging flavor bans established through the legislative process “may be difficult,” he said.

It’s a low bar for states to argue restrictions on vaping sales are in the public interest, said Hoke of the University of Maryland Carey School of Law. States only have to show there is legitimate public interest and a rational relationship between their law and the public good that’s being pursued to survive a constitutional challenge.

“I have very little to no doubt that a state that writes an appropriate flavor ban will be able to meet that low standard,” she said.

Federal Legislation Unlikely

Congressional Democrats also want tougher restrictions than what the FDA laid out last week.

Sen. Patty Murray, a Washington state Democrat and the ranking member of the Senate Health, Education, Labor, and Pensions Committee, says Congress still needs to pass “comprehensive measures to stop the growing epidemic of youth tobacco use, including clearing the market of all flavored tobacco products that have not undergone FDA review.”

Thanks to a 2016 regulatory change, e-cigarette companies right now can sell their products but they aren’t technically authorized by the FDA. They all have to apply for marketing authorization by May, and if they don’t get the FDA go-ahead they have to pull their products from the market.

Sen. Lamar Alexander of Tennessee, an influential Republican, also seems dissatisfied with the exemptions the FDA gave certain companies in its latest policy.

“The Food and Drug Administration has substantial authority to do more and should use it,” he said in a statement. “A good next step would be for the FDA to announce policies to help store owners enforce the new age restriction and flavor ban.”

Any new legislation that pulls all vape flavors from the market isn’t likely to get much traction though with drug prices and surprise billing eating up much of the time spent debating health care issues on the Hill. Lawmakers also already raised the smoking age from 18 to 21, a pet project of Senate Majority Leader Mitch McConnell (R-Ky.) and one of the few bipartisan and easily solved health issues left on the table after banning pharmacy “gag clauses.”

When it comes to flavored tobacco products, the Campaign for Tobacco-Free Kids’ end goal is simple: “All flavors. All locations. No exemptions,” John Schachter, a spokesman for the group said.

To contact the reporters on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com; Jacquie Lee in Washington at jlee1@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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