Convenience stores in Alabama, the United States, were originally restricted by the latest e-cigarette bill and could only sell 34 types of vape products approved by the FDA. After the Petroleum and Convenience Store Marketers Association filed a federal lawsuit, the state government finally reached a compromise, and convenience stores can now continue to sell products “pending approval” by the FDA and those on the state registration list. The lawsuit pointed out that two provisions of the HB8 bill were unconstitutional and interfered with federal powers. The core legal provisions will be reviewed in October.
Key points:
- Background bill: Alabama in the United States passed the HB8 bill, strictly restricting convenience stores from selling vapes that have not been approved by the FDA, and only allowing the sale of unauthorized products in age-limited specialty stores.
- PCMA files a lawsuit: The Alabama Petroleum and Convenience Store Marketers Association (PCMA) filed a lawsuit in federal court at the end of May, arguing that two provisions of the bill were unconstitutional and violated the regulatory authority of the federal FDA.
- Core controversy: Delegating law enforcement power to state agencies for the enforcement of federal laws; The prohibition of selling products containing overseas components violates the principle of the unity of trade and regulation.
- Interim Agreement: During the litigation period, the PCMA reached a provisional agreement with the state government, allowing convenience stores to sell e-cigarette products that are “pending approval” by the FDA or listed in the state directory.
- Subsequent progress: The provisions concerning “prohibiting overseas component products” will come into effect on October 1st, and the court will continue to hear the relevant content at that time.
Alabama e-cigarette bill accused of being unconstitutional
According to AL.com, the Alabama Petroleum and Convenience Store Marketers Association (PCMA) filed a federal lawsuit against the HB8 bill, which aims to regulate the sale of e-cigarettes, at the end of May, claiming that the new law is unconstitutional in two aspects. Now, the state government and the industry association have reached an agreement to expand the range of products that can be sustainably sold in convenience stores.
The previous complaint of PCMA stated:
- First of all, the regulation that restricts the sale of many e-cigarette products to “professional retailers” accessible only to adults is given priority by federal law. This new regulation prohibits non-professional retailers (such as gas stations and convenience stores with tobacco licenses) from selling any e-cigarettes that have not been authorized by the FDA (Food and Drug Administration of the United States).
The complaint continues to state:
- Gas stations and convenience stores will no longer be able to sell e-cigarettes that have not been authorized by the FDA. However, only the FDA has the authority to enforce the federal Food, Drug, and Cosmetic Act (FDCA). Given that the Professional Retailer clause is intended to allow the State Alcoholic Beverage Regulatory Authority (ABC Board) and Alabama law enforcement agencies to take enforcement actions against retailers solely based on whether the products have been officially authorized by the FDA, this clause is given priority by federal law.
According to the original legal provisions, convenience stores in Alabama were only allowed to sell 34 types of tobacco and menthol-flavored vape products approved by the FDA. All other flavors – including hundreds of products currently awaiting FDA review – are banned from sale, except in age-limited vape stores that are accessible only to those aged 21 and above.
Government agrees to sell products pending approval in convenience stores
The complaint here points out the second unconstitutionality: “Secondly, the regulation that completely prohibits the sale of any new generation of tobacco products containing overhauled components (unless the product has obtained marketing authorization from the FDA) is unconstitutional.”
The complaint holds: “The formulation of this clause is out of an understandable desire to promote public health.” But this aspiration led the legislative body to adopt unconstitutional solutions. This clause, like the professional retailer clause, is given priority by the FDCA. Similarly, only the FDA can enforce this federal law.
In the agreement reached between PCMA and the state government. The sale of all products on the FDA’s “Pending Approval” list or in the state’s “Electronic Nicotine Delivery System (ENDS) Directory” is allowed.
The legal provisions in the lawsuit that only allow the sale of vapes and related products manufactured, packaged, labeled, and produced in the United States will be heard after the provisions take effect on October 1.
