Tobacco Update: Trump FDA Continues Aggressive Opposition to Cigarettes, More Open to E-Cigs

The first several months of the Trump Administration have brought with them no shortage of eye-catching, newsworthy headlines. Perhaps lost among the crowd, however, have been several developments on the tobacco space that NATSO members, as tobacco retailers, should understand.

First, new Food and Drug Administration Commissioner Scott Gottlieb has said he envisions a "world where cigarettes would no longer create or sustain addiction, and where adults who still need or want nicotine could get it from alternative and less harmful sources," calling this the "cornerstone" of FDA's regulatory approach in the tobacco space.

This is a strong indication that FDA intends to consciously shift smokers from traditional tobacco products toward e-cigarettes. To underscore this point, Gottlieb also has stated that "we need to make sure we strike the right balance between FDA fulfilling its vital consumer protection role while also fostering innovation when it comes to potentially less harmful forms of nicotine delivery."

As a practical matter, this means FDA is likely to maintain a less restrictive, more accommodating posture compared with the Obama Administration with respect to manufacturers seeking to introduce new e-cigarette and vaping products to the market.

At the same time, FDA may well continue President Obama's aggressive anti-cigarette positions. For example, the FDA reportedly intends to seek public input on the role that flavors in tobacco products (including menthol) play in attracting youth to cigarettes. In addition, the FDA recently announced a new plan for tobacco and nicotine regulation that could lead to serious debates with regard to lowering permissible nicotine levels in combustible cigarettes to non-addictive levels.

In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act. This legislation gave FDA the authority to regulate the manufacture, marketing, and retail sale of cigarettes and smokeless tobacco products. FDA is currently working with state enforcement agencies to conduct undercover inspections of tobacco retailers to ensure that they are complying with federal requirements.

NATSO has prepared compliance documents outlining the various issues that these inspections will cover, as well as how retailers should respond if they are accused of violating the law. Those resources are available here.

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David Fialkov

David Fialkov is the Vice President of Government Relations, as well as the Legislative and Regulatory Counsel, at NATSO. In this capacity, Mr. Fialkov direct's NATSO's legislative, regulatory, and legal strategy on a range of issues, including transportation, energy and fuels, labor, data security, and taxes. Mr. Fialkov also oversees NATSO's political engagement program, including individualized legal and political counsel to member companies. Prior to joining NATSO, Mr. Fialkov was the senior associate in the Government Affairs and Public Policy practice at the law firm of Steptoe and Johnson in Washington, D.C. At Steptoe, Mr. Fialkov advised clients on legislative, regulatory, and political issues, as well as legal concerns. His primary clients included trade associations representing the motor fuel wholesale and retail industries, including the National Association of Convenience Stores and the Society of Independent Gasoline Marketers of America. Mr. Fialkov's focus was not only on the motor fuels business, but also the litany of other issues that retailers confront, including labor matters, foodservice issues, healthcare and employment issues, tax matters and data security. Prior to joining Steptoe, Mr. Fialkov graduated with honors from George Washington University Law School. He received his B.S. Summa cum laude with highest honors from Clark University in Worcester, MA. He lives in Washington, D.C. with his wife Allison and daughter Lilah. More
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