State AGs Redouble Efforts to Snuff Out Flavored Tobacco Products

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  • A group of 20 Democratic AGs, led by Massachusetts AG Andrea Campbell, has filed an amicus brief before the U.S. Supreme Court in Food and Drug Administration v. Wages and White Lion Investments, LLC., dba Triton Distribution, et al., No. 23-1038, urging the Court to reverse a Fifth Circuit opinion that set aside the FDA’s denials of applications to market and sell flavored vape products across state lines.
  • The AGs’ brief in support of the FDA argues that flavored e-cigarette use has increased among children—even as use of other tobacco products has declined—and that national regulation and control of these products is critical because state efforts to restrict their availability are easily undermined when products are transported across state borders, whether purchased in-person or online. The AGs further argue that, under the Family Smoking Prevention and Tobacco Control Act, the FDA has broad authority over new tobacco products entering interstate commerce.
  • Flavored vape products are also in the crosshairs of Minnesota AG Keith Ellison, who sent letters to more than 5,000 tobacco distributors and retailers requesting that they cease sales or distribution of unlawful tobacco products in the state.
  • In the letters, AG Ellison notifies the businesses that e-cigarettes and nicotine pouches not authorized by the FDA are thus “adulterated” and “misbranded” products in violation of the federal Food, Drug and Cosmetic Act, as amended by the Tobacco Control Act, and that sale of such products may violate Minnesota consumer protection laws.
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