State Of Vapor Laws in U.S. States – April 2020

FROM THE TRENCHES
April 3, 2020
This week has been another busy week for VTA. As our federal and state governments respond aggressively to the COVID-19 pandemic, VTA remains fully engaged in supporting and advocating for the rights of our community. We ask that you do your part to ensure that we slow the further spread of the virus. We are all in this together.
FDA SEEKS PMTA DEADLINE EXTENSION; COURT ISSUES INDICATIVE RULING
This week, the FDA submitted a letter to the U.S. District Court for the District of Maryland, in American Academy of Pediatrics, et al. v. FDA, et al., asking Judge Grimm to extend the May 12, 2020 court-ordered PMTA deadline by 120-days to September 9, 2020 “in light of the global outbreak of respiratory illness caused by a new coronavirus.”
 
In deciding to request a 120-day extension, the FDA noted that it had received requests from numerous trade associations and companies, including consultants involved in the PMTA process, for extensions “between 8 weeks and 180 days, with the majority of requests for 180 days.”  VTA was one of those trade associations that submitted a request to the FDA and did so on March 20, 2020 outlining the basis and necessity for deadline extensions for large manufacturers and small manufacturers. VTA also encouraged the FDA to utilize the additional time to implement PMTA process modifications that will ensure the survival of small businesses and a diverse array of the vapor products on which former smokers now rely.
 
The District Court initially set a briefing schedule to allow the Plaintiffs time to present their arguments (even though they did not object to the FDA’s request) that ran dangerously close to the May 12, 2020 deadline.  However, the Plaintiffs filed their written statement early and, today, the District Court issued an “Indicative Ruling” stating that if the case is remanded to the District Court from the Fourth Circuit Court of Appeals (where the case currently resides), the District Court would extend the May 12, 2020 PMTA deadline to September 9, 2020. 
 
This is an important development and with the understanding that no official order has yet extended the deadline, we presume that if the Court of Appeals remands the case promptly, the District Court will convert the Indicative Ruling into a former order extending the deadline. However, until that time, the deadline remains May 12, 2020. Upon the entry of the final order, we anticipate that the FDA will update its January 2020 guidance as indicated. We will keep you apprised of developments.
IOWA ATTORNEY GENERAL, PUBLIC HEALTH EXPERTS, SEND LETTER TO FDA COMBATING CORONAVIRUS AND VAPING ACCUSATIONS
On Tuesday, Iowa’s Attorney General, Thomas J. Miller, sent a letter to Mitchell Zeller, Director of Center for Tobacco Products at the FDA, challenging the basis of comments made by an FDA spokesperson linking coronavirus and vaping. The letter addressed the seriousness of miscommunication during this time and offered advice to the FDA for how it should be communicating the risks of smoking and vaping at this time, i.e., based on science. The letter was signed by Attorney General Miller and 12 leading harm reduction, public health, and public policy experts. VTA also sent a letter to FDA raising concerns on this same subject and imploring the agency to speak clearly based on science during this difficult time.
VAPOR INDUSTRY RALLIES AMIDST COVID-19 CRISIS TO MANUFACTURE HAND SANITIZER AND DELIVER MASKS
Examples are pouring in highlighting how our industry is stepping up to combat the coronavirus. This week we have been working with members and other healthcare industry stakeholders in developing alliances and sourcing materials for the manufacture of hand sanitizer and surgical masks. We are still looking for every example, large and small, of how the companies in our industry have been stepping up to do their part to flatten the curve. If you have not done so already, please send details of what your company has been doing and let us know if you want to be included in our coordinated effort. If you have any questions, examples to share, or are interested in supporting this effort, please send us an email entitled COVID-19 Response to us at: COVID19ReliefTeam@vaportechnology.org.
STATE OF THE STATES
This week has been another busy week for VTA and its member associations in statehouses. As state governments respond aggressively to the COVID-19 pandemic and prepare stay-at-home orders, we are working hard to lobby for vapor stores to be identified as essential businesses. 
FLORIDA FIGHTS FOR FLAVOR BAN VETO
This week, VTA’s Veto SB 810 advertisement campaign continued in Tallahassee, Florida. The campaign calls on Governor DeSantis to veto legislation that would ban the sale of flavored e-liquids sold to adults by over 800 small businesses in Florida. The ad, “Florida’s Economy” highlights the devastating economic and public health consequences this bill would have on the state of Florida. The ad is airing on CNN and Fox News shows in Tallahassee.

We are continuing our efforts to reach the Governor and advocate on behalf of our members who would be severely impacted by this legislation, but we NEED YOU and all Florida residents to continue to ask Governor DeSantis to VETO Senate Bill 810. Please take action and tell your friends and colleagues in Florida to contact the Governor here: https://vaperssayveto.com/.
NEW YORK FLAVOR BAN PASSES
Early this morning, despite enormous industry and consumer pushback, the New York State legislature passed a sweeping vapor bill that included a full flavor ban as part of the New York State budget. As we reported earlier, Governor Cuomo had made this a priority – even during the coronavirus fight – and forced the flavor ban into the state budget without so much as a hearing or debate on the issue. VTA’s campaign, alongside New York vape businesses and the most fervent consumer advocates, was strong but hampered by the inability to engage legislators or even test the flavor ban at a hearing because the legislature was on lock down due to coronavirus. VTA has issued a statement on the passing.
 
Here are just a few of the provisions included in the budget bill affecting our industry:
 
Flavor Ban: The new law bans the sale of flavored vapor products including mint, wintergreen and menthol. Retailers in violation of the law can be subject to civil penalties of up to $100 per individual package of flavor product sold for consumption. Products receiving PMTA approval are exempt from this provision.  Because the bill was signed today, the flavor ban will go into effect in 45 days. 
 
Coupons Banned: The law bans the use of coupons for all tobacco and vapor products at the retail level.
 
Licensing and Shipping: Shipping and transporting vapor products in New York will require licensure as a vapor products dealer. Licensing is through the Commissioner of Taxation. Vapor products shipped into or within the state must be plainly marked as “vapor products.” First offense violation is a class A misdemeanor and a second offense is a class E felony.
 
Product Ingredient Reporting: Manufacturers will be required to provide a public record of the ingredients and byproducts of each vapor product, in addition to research on the effects on human health for each ingredient listed, and the evaluation of potential alternatives to these ingredients along with the hazards associated with them. Compliance is required by January 1, 2021 and every two years thereafter. A first offense violation is $5,000 and each subsequent offense is $10,000.
 
Advertising Restriction: Tobacco and vapor product advertising is not permitted in the windows and doors of retail establishments within 1500 feet of a school (500 feet in New York City). Violators are subject to a $500 fine.
 
The provisions of this law will take effect on July 1, 2020 unless otherwise noted above.
 
VAPOR TECHNOLOGY ASSOCIATION, et al. v. ANDREW CUOMO, Governor, et al.
The lawsuit through which VTA stopped the executive flavor ban last year, keeping all vapor companies in business in New York, continues on. In the last two weeks, in the midst of the coronavirus pandemic, the Administration asked the Appellate Court to reopen so it could pursue its appeal claiming it was “urgent”. The Appellate Court agreed to hear the case, we are continuing to defend against the unconstitutional overreach of the executive branch in issuing its original flavor ban order. We will see where the case goes in light of today’s developments but, true to form, certain “public health” groups attempted to file a “friends of the court” brief seeking to impact the proceeding. Attached is the VTA’s response that calls out the Campaign for Tobacco Free Kids, American Lung Association and the other petitioners, for their filing in which they appear to intentionally mislead the Appellate Court by failing to advise the court that the FDA banned the flavored products they have been campaigning against and by falsely attacking one of our co-plaintiffs.
KENTUCKY TAX BILL MOVES TO GOVERNOR FOR SIGNING
The VTA Government Affairs team has been engaged on the tax implications of HB 32. The legislative tax language from HB 32 was added to the overall Kentucky Revenue legislation (HB 351) and passed both chambers this week. The language used in the revenue bill removes the floor tax but taxes pods at a rate of $1.50 per pod and adds 15% wholesale tax on open systems. This move was made in haste due to the pending legislative recess and stay at home orders. The revenue legislation HB 351 now moves onto the Governor for signature. We are monitoring for signing and will update accordingly. The provisions of this law will take effect August 1, 2020.
VTA IN THE NEWS
FDA ASKS JUDGE TO DELAY E-CIGARETTE DEADLINE, CITING VIRUS
Bloomberg Law covered the FDA’s request for an extension to the May 12 PMTA deadline. Tony Abboud, executive director of the Vapor Technology Association, called the move “a step in the right direction” but said it likely won’t go far enough. VTA sent a letter to the FDA earlier this month requesting a 180-day extension for large manufacturers and a 270-day extension for small ones. To read the full piece, click here.
E-CIGARETTE FLAVOR BAN IN NEW YORK STATE BUDGET, LOCAL VAPE SHOPS CONCERNED
The e-cigarette flavor ban made its way into the New York State 2021 budget. “We’re disappointed that Governor Cuomo used a global health emergency to force the New York legislature to pass a ban on flavored vapor products through backroom negotiations and without holding a single hearing or debate,” said Tony Abboud, Executive Director of the Vapor Technology AssociationTo read the full piece, click here.
IN THE NEWS
VAPE SHOPS LOBBY TO KEEP DOORS OPEN AMID VIRUS SHUTDOWNS
Pro-vaping groups are mounting an uphill campaign to persuade federal and state authorities to let vape shops remain open even as other retailers close their doors during the growing outbreak of the new coronavirus. Advocates say vape shops are essential businesses that help keep Americans from buying traditional cigarettes. To read the full piece, click here.
VAPING ENTHUSIASTS HOLD VIRTUAL RALLY TO VOICE DESIRE FOR GUBERNATORIAL VETO
The Florida Smoke Free Association (FSFA) hosted a virtual rally urging Governor Ron DeSantis to veto a flavored vaping ban passed by the state legislature. To read the full piece, click here.
During this time of uncertainty, we ask that you be safe, be smart and stick with us. As we have always said, we are all in this together. Connect with us and thank you for all you do to protect vapor!

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