The Big Picture

An overview of federal, state and local tobacco issues.

By  Thomas A. Briant, Executive Director

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It used to be that tobacco issues were for the most part confined to state-level excise tax increases. However, taking a step back and looking at the big picture, the landscape now includes tobacco-related issues at all levels of government, including federal, state and local taxation, restrictions or regulations.

The year 2013 is no different, and includes its share of perennial tobacco-related legislative and regulatory issues along with some new proposals that seek to limit who can purchase tobacco products, as well as ban the sale of certain legal tobacco products.

On the Federal Level

This year, federal-level topics have included several FDA issues, including litigation over the cigarette graphic health warnings; a potential violation form for use by the public; a request for additional input on the use of menthol in cigarettes; and an announcement of possible new proposed regulations on cigars, pipe tobacco and/or electronic cigarettes.

In March, the FDA decided not to appeal to the U.S. Supreme Court a ruling by the Circuit Court of Appeals for the District of Columbia, which held that the FDA’s cigarette graphic warning labels violated the free-speech protections of the First Amendment to the U.S. Constitution. Rather, the FDA decided to conduct further research and develop a new set of graphic cigarette warning labels that would meet constitutional requirements for factual warning labels and also comply with free-speech protections for product advertising. This means that for the foreseeable future, the current surgeon general’s cigarette warning labels will remain in place on cigarette packages.

The FDA finalized a “Potential Tobacco Product Violation Form,” which allows a member of the public to submit to the agency via phone call, smartphone application or mailed report that a retailer may have violated one of the federal tobacco regulations. NATO has filed written comments asking the FDA to revise the form to clarify that the public can submit reports only on cigarettes, roll-your-own tobacco and smokeless tobacco products because the FDA does not yet regulate cigars, pipe tobacco or electronic cigarettes. To date, the FDA has not revised the reporting form as requested.

In July, the U.S. Food and Drug Administration issued an “Advance Notice of Proposed Rulemaking” to seek additional information and comments from the public to make informed decisions about the use of menthol in cigarettes. The FDA notice requested comments and additional evidence on the following questions:

  1. Should the FDA consider establishing an allowable level of menthol (e.g., maximum or minimum) in cigarettes?
  2. Should the FDA consider issuing regulations to address menthol in tobacco products other than cigarettes?
  3. If menthol were to be limited or prohibited, what length of time should manufacturers be provided to achieve compliance with the new standard?
  4. Should the FDA consider establishing restrictions on the sale and/or distribution of menthol cigarettes?
  5. Should the FDA consider establishing restrictions on the advertising and promotion of menthol cigarettes?
  6. Will limiting or prohibiting menthol in cigarettes result in illicit trade or a black market in menthol cigarettes?

Besides the notice on menthol in cigarettes, a final regulatory notice issued by the FDA stated that the agency plans to issue proposed regulations on products that meet the definition of a “tobacco product” under the terms of the Family Smoking Prevention and Tobacco Control Act, the law that authorized the agency to regulate tobacco products. This means that the FDA may issue proposed tobacco regulations on cigars, pipe tobacco and/or electronic cigarettes. Any such proposed regulations would be open for public comment prior to being finalized by the FDA.

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