State of the Industry

With the start of 2024 comes the anticipated onslaught of bills through our nation’s states - the worst of them being a series of “PMTA Registry” bills appearing in states such as Florida, Indiana, Vermont, Virginia, and Washington. Aside from these bills, we are seeing flavor bans, hefty tax increases, and nicotine concentration caps - all of which are terrible public health policies.

Simultaneously, FDA seems to be finishing another round of MDOs and moving well into the next, where we anticipate they will begin to address the menthol and tobacco applications still lingering for those companies who have already received an MDO on flavored liquids, as well as those companies who have been returned to review under court order.

The future is as precarious as ever with a few key differences.

The recent decision in the Triton case made in the the Fifth Circuit, which is considered the most conservative of the nation’s 13 federal appeals courts, may well be a saving grace. The split opinion among the circuit courts could entice the Supreme Court to take it, or another case, especially if the Loper Bright Enterprises v. Raimondo case is won and the “Chevron doctrine” we discussed a few newsletters back is altered. It is entirely possible that the US. Supreme Court will want to hear a case that will put the new policy to the test. In the meantime, there are still a plethora of lawsuits out there whose arguments are strengthened by every court win. In fact, just this past Monday, Magellan Technologies filed a petition for a Writ of Certiorari, which, if granted, could potentially set a precedent.

So what is a Writ of Certiorari? Good question.

Parties who are not satisfied with the decision of a lower circuit court must petition the U.S. Supreme Court to hear their case. The primary method to petition the court for review is to ask it to grant a Writ of Certiorari. This is a request where the Supreme Court orders a lower court to send up the record of the case for review. Typically, the Court is not under any obligation to hear these cases, and it usually only hears cases that might have national significance, that might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value.

Vaping360 has done a great job of keeping up with the legal cases against the FDA. You can find their complete list in chronological order by following the hyperlink below.

Take me to VAPING360

While all of the above is going on, we are in the middle of what will likely be a polarizing election cycle.

2024 is going to be one heck of a ride.

For those of you who have so passionately held on, we ask you to keep holding on.

If you are in a state that has poor regulatory policy before legislature, do not hesitate to reach out for help. You will find a list of the state bills and local issues on the SFATA website. We will update the list periodically and have included links to active Calls-to-Action. Retailers in these states are HIGHLY ENCOURAGED to request consumer engagement. There is strength in numbers and we must show ours.

Take Me to the State Bills Page