New FDA Regulations and Graphic Warning Labels Lawsuit

October 7, 2016

On August 8, 2016, the Food and Drug Administration (FDA) began restricting retailers' ability to sell additional tobacco products beyond simply cigarettes. Such products include e-cigarettes and vaping products, rather than only traditional combustible cigarettes. These products became subject to minimum purchasing age (18) requirements and associated customer age identification verification requirements, as well as marketing and advertising restrictions and a prohibition of vending machine sales of e-cigarettes. The rules also impose these restrictions on hookah, pipe tobacco, and cigars.

Because FDA and various states are conducting undercover "sting" operations, it is imperative that tobacco retailers understand their obligations and have effective compliance programs in place. NATSO has prepared a comprehensive toolkit for travel plaza operators outlining what these government inspections will cover, as well as how retailers should respond if they are accused of violating the law.

In other tobacco news, eight public health and medical groups on Oct. 4, 2016, filed a lawsuit in federal court to force FDA to require graphic health warnings on cigarette packages and advertising. Federal legislation passed in 2009 required graphic warnings to cover the top half of cigarette packages and 20 percent of all advertising, but FDA's efforts to implement this provision were found to violate the First Amendment by a federal court. That ruling only applied to FDA's specific proposal, however, and not to the entire effort to require graphic warning labels. A different federal court ruled that the FDA's proposed labels did not violate the First Amendment.

The lawsuit is designed to prompt FDA to require different graphic warning labels, this time consistent with the First Amendment. The FDA stated in 2013 that it planned to require different warnings but has yet to act.

David Fialkov's photo

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 directs 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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