North America: Market and legal data analysis of the vaping sector

10th October 2024: US - Missouri: Today, the Kansas City Council will consider an ordinance that would ban the sale and distribution of flavoured tobacco products. The ordinance would ban all flavours except tobacco in all tobacco and vapour products. Kansas City is the largest city in Missouri, with a population of more than 500,000. If passed, this would be the first local flavour ban in the state.
9th October 2024: US - General: The Food and Drug Administration (FDA) has issued new warning letters for selling or distributing e-liquids that lack a marketing authorisation order, highlighting that on 15th March 2022 the FDA's jurisdiction was extended to include products containing nicotine from any source, not just nicotine derived from tobacco.
8th October 2024: US - General: A class action complaint has been filed against the maker of Puff Bar for false advertising claims. The complaint alleges that the products are being advertised as having “5%” nicotine labels or as “tobacco-free”, misleading consumers into thinking these products have lower or no safety risks compared with traditional tobacco products. Plaintiffs are seeking monetary damages and a trial by jury.
7th October 2024: US - Federal: Arizona congressman Ruben Gallego has sent a letter to the Food and Drug Administration (FDA) and Department of Justice, urging them to put the multi-agency task force into use. “Every day without action results in more young Arizonans falling victim to addictive products from China,” he said. He stated that there is a stream of illicit products that are being supplied without going through FDA oversight, highlighting that most of the leading manufacturers of illegal products are in China, and so impactful enforcement actions must be undertaken.
4th October 2024: Americas: The Directing Council of the Pan American Health Organization (PAHO) – the specialised international health agency for the region of the Americas within the World Health Organization (WHO) – has adopted a new strategy to strengthen tobacco control in the region, setting out different objectives for 2030. The strategy aims to increase the number of countries in the region adopting tobacco control measures. Measures could include establishing regulatory measures for novel tobacco and nicotine products, adopting smoke-free measures, enacting legislation to introduce large health warnings (covering at least 50% of the main surfaces of packaging) for tobacco products, introducing plain packaging for tobacco products or adopting a complete advertising ban.
1st October 2024: US - Michigan: Several new bills have been introduced relating to youth access to nicotine and tobacco products, including House Bill (HB) 6002, HB 6003, HB 6004 and HB6005. These bills would update existing legislation to reflect the federal minimum tobacco access age requirement of 21, and would generally adjust penalties regarding the sales of tobacco products, vapour products and alternative nicotine products to under-21s.
30th September 2024: US - Federal: As as stipulated in the Food and Drug Administration (FDA)’s final rule issued on 30th August 2024 – which increased the minimum age for certain restrictions on tobacco sales – as of today, 30th September, retailers will have to ask anyone under the age of 30 for photo identification (previously, it was 27), and vending machines with tobacco products will not be allowed, unless access to individuals under 21 is prohibited (previously, it was 18).
26th September 2024: US - New York: Assembly Bill A10713 has recently been introduced. This bill would prohibit the sale of “entertainment” vapour products, which include any vapour product that has Bluetooth, wireless internet or other internet connectivity, or provides interactive features designed to enhance user experience (such as the ability to play music, display photos/videos, play virtual games or display other animations on the device).
25th September 2024: US - Federal: This month, the Food and Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC) released the data from the 2024 E-Cigarette and Nicotine Pouch Use Among Middle and High School Students (in the US). While the data shows that e-cigarette usage has declined among youth (from 7.7% to 5.9% from one year to the other), the FDA and CDC still consider it high. Additionally, they have pointed out that nicotine pouch usage among youth has become concerning.
5th September 2024: US - Federal: A coalition of congressional Democrats filed an amici curiae brief to the Supreme Court urging the court to support the Food and Drug Administration (FDA)’s authority and actions to regulate e-cigarettes. The Supreme Court will hear the case FDA vs Wages and White Lion Investments LLC, dba Triton Distribution in the next session, which begins in October. In January, the US Court of Appeals for the Fifth Circuit found that the FDA had been arbitrary and capricious by denying premarket tobacco product applications (PMTAs) without considering plans by the companies to prevent under-age access and use. In the amici brief, the group of legislators argued that the FDA’s decision to reject these PMTAs was “carefully” reasoned. “Guided by Congress’ chief directive – to deny such authorization unless a product under review would be ‘appropriate for the protection of the public health’ … FDA has been appropriately mindful of children and teenagers, the most vulnerable pool of non-tobacco users,” the lawmakers wrote.
4th September 2024: US - Federal: The Food and Drug Administration (FDA) has issued new warning letters to manufacturers and distributors of e-liquid and electronic nicotine delivery system (ENDS) products that are “new tobacco products” without the required FDA marketing authorisation to remain in the market.
2nd September 2024: US - Federal: The US Food and Drug Adminstration (FDA) has issued a final rule increasing the minimum age for certain restrictions on sales of tobacco products, including e-cigarettes. From 30th September, retailers must ask any purchasers of tobacco products under the age of 30 for photo identification (currently, this requirement is for customers under 27). In addition, vending machines with tobacco products will not be permitted unless under-21s have their access restricted to these facilities (currently, this requirement is for under-18s). “Today’s rule is another key step toward protecting our nation’s youth from the health risks of tobacco products,” said Brian King, director of the FDA’s Center for Tobacco Products. He added: “Decades of science have shown that keeping tobacco products away from youth is critical to reducing the number of people who ultimately become addicted to these products and suffer from tobacco-related disease and death.”

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