E-Cigarette and Vaping Practice Group

The firm’s E-Cigarette And Vaping Practice Group specializes in providing counseling to manufacturers and retailers in the electronic cigarette industry, and in handling litigation matters for such manufacturers and retailers, including the defense of class actions.  The firm is currently defending a manufacturer of e-liquids in a class action lawsuit.  The firm has extensive knowledge of the new federal regulations and of state laws, and is helping assist its clients in complying with these regulations and laws.  

On May 10, 2016, the Food & Drug Administration (“FDA”) published Regulations which expanded the FDA’s authority to regulate tobacco products to electronic cigarettes and other Electronic Nicotine Delivery Systems.  The Regulations set forth various requirements. Among other things, the FDA now requires new products (referred to as “newly deemed” products) to contain a clear and conspicuous warning, providing: “WARNING: This product contains nicotine.  Nicotine is an addictive chemical.” The Regulations set forth font size and placement requirements and provide alternatives if the packaging is too small.  The FDA further recommends that “newly deemed” products contain a warning of the health risks associated with nicotine. Under the Regulations, products can remain on the market, without the newly required labeling, for 24 months, during which time manufacturers can submit premarket review applications (“PMTA”).  Upon submission of the PMTA, the FDA will evaluate the product’s constituents and scientific data and studies and determine whether to issue a marketing order. 

In California, there have been significant developments in the law.  On May 4, 2016, Governor Brown signed a package of tobacco bills, including one that went into effect on June 9, 2016 which raised the legal age to smoke or vape in California to 21.  Effective October 1, 2016, all cartridges for electronic cigarettes for filling or refilling an electronic cigarette must be in child-resistant packaging.  Effective January 1, 2017, the Stake Act (age verification provisions for sellers and distributors; billboard advertising provisions) and The Pact Act (delivery requirements) will apply to vaping products.

We collaborate with our clients to identify their critical objectives and to create effective, cost-saving solutions to achieve their goals. Our attorneys are continually reading updated commentary and guidance regarding all the new legislation and advising our clients on all these developments.