State and Local Authority to Regulate Electronic Cigarettes
State and Local Authority to Regulate Electronic Cigarettes Kathleen Susan Hoke Director Legal Resource Center for Public Health Policy Credit: Maggie Mahoney Tobacco Control Legal Consortium
Warnings; Advertising & Marketing Restrictions
Restricting sale of certain products
Retail environment
Youth access updates/enhancements
Smoke-free Program funding Taxes & other pricing
Image from iangrey.org
Missed Opportunities Current federal requirements for cigarettes
Proposed federal requirements for e-cigarettes containing nicotine or tobacco
Minimum purchase age of 18
No vending machine sales
Allowed in adults-only facilities
Allowed in adults-only facilities
Minimum package size requirements
No selling of a partial package
No free samples
Menthol and tobacco allowed
9 Rotating warnings
1 Static warning re: containing nicotine, which is addictive
No brand-names sponsorship of sporting and cultural events, no brand names on nontobacco items
Required notice of ads in any non-traditional medium
No self-service displays
No characterizing flavors Warnings on packages and ads
The Act: State and Local Authority provision of this subchapter shall limit or herwise affect any State, tribal, or lPreservation. Except as provided in paragraph (2)(A), nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of … a State or political subdivision of a State … to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products. No provision of this subchapter shall limit or otherwise affect any State, tribal, or local taxation of tobacco products. Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(1) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009) Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(1) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009)
The Act: State and Local Authority ((B) Exception [Savings Clause]. [The preemption clause in the Act] does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age, or relating to fire safety standards for tobacco products… Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(2)(A) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009) Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(2)(A) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009)
The Act: State and Local Authority The FDA • YES: product standards – Nicotine yields – Ingredients, constituents – How constructed •
NO: – Smoke-free – Tax – Ban a class of products (e.g., all cigars)
States/Locals NO: product standards
• •
YES: – Smoke-free – Taxes and pricing – Sales & distribution – Advertising and promotion
Option: Add to S-F Laws • Rationale: – Health impact of second-hand aerosol – Social norm impact – Enforcement
• Drafting tips: – Add to existing law – Include all devices, regardless of nicotine – Do not exempt cessation devices
Option: Restrict Youth Access • • •
No sales to minors/minimum purchase age No free samples No self-service
Option: Taxes • Minnesota – DOR interpretation of “tobacco product” – Enforcement challenges • Claims of no nicotine; claims not derived from tobacco • Products that look like cigarettes; apportionment • North Carolina – Passed law taxing volume of e-juice – Industry-backed legislation • St. Petersburg, Alaska (10/07/14) – 45% of wholesale price of parts or kits with e-juice
Image from townofcary.org
Image from the Center for Tobacco Policy & Organizing
Option: Retail Environment
Option: Discounting Restrictions
Option: Sales Restrictions
Resources
The End. • Kathleen Susan Hoke [email protected] 410-706-1294
Warnings; Advertising & Marketing Restrictions
Restricting sale of certain products
Retail environment
Youth access updates/enhancements
Smoke-free Program funding Taxes & other pricing
Image from iangrey.org
Missed Opportunities Current federal requirements for cigarettes
Proposed federal requirements for e-cigarettes containing nicotine or tobacco
Minimum purchase age of 18
No vending machine sales
Allowed in adults-only facilities
Allowed in adults-only facilities
Minimum package size requirements
No selling of a partial package
No free samples
Menthol and tobacco allowed
9 Rotating warnings
1 Static warning re: containing nicotine, which is addictive
No brand-names sponsorship of sporting and cultural events, no brand names on nontobacco items
Required notice of ads in any non-traditional medium
No self-service displays
No characterizing flavors Warnings on packages and ads
The Act: State and Local Authority provision of this subchapter shall limit or herwise affect any State, tribal, or lPreservation. Except as provided in paragraph (2)(A), nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of … a State or political subdivision of a State … to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products. No provision of this subchapter shall limit or otherwise affect any State, tribal, or local taxation of tobacco products. Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(1) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009) Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(1) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009)
The Act: State and Local Authority ((B) Exception [Savings Clause]. [The preemption clause in the Act] does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age, or relating to fire safety standards for tobacco products… Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(2)(A) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009) Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387p(a)(2)(A) (modified by the Family Smoking Prevention and Tobacco Control Act of 2009)
The Act: State and Local Authority The FDA • YES: product standards – Nicotine yields – Ingredients, constituents – How constructed •
NO: – Smoke-free – Tax – Ban a class of products (e.g., all cigars)
States/Locals NO: product standards
• •
YES: – Smoke-free – Taxes and pricing – Sales & distribution – Advertising and promotion
Option: Add to S-F Laws • Rationale: – Health impact of second-hand aerosol – Social norm impact – Enforcement
• Drafting tips: – Add to existing law – Include all devices, regardless of nicotine – Do not exempt cessation devices
Option: Restrict Youth Access • • •
No sales to minors/minimum purchase age No free samples No self-service
Option: Taxes • Minnesota – DOR interpretation of “tobacco product” – Enforcement challenges • Claims of no nicotine; claims not derived from tobacco • Products that look like cigarettes; apportionment • North Carolina – Passed law taxing volume of e-juice – Industry-backed legislation • St. Petersburg, Alaska (10/07/14) – 45% of wholesale price of parts or kits with e-juice
Image from townofcary.org
Image from the Center for Tobacco Policy & Organizing
Option: Retail Environment
Option: Discounting Restrictions
Option: Sales Restrictions
Resources
The End. • Kathleen Susan Hoke [email protected] 410-706-1294
