FDA ?Missouri SB841 Vs FDA Deeming?

[Alexander Mundy]

MO SB841 <snip> 407.926. <snip> "3. Alternative nicotine products and vapor products shall only be sold to persons eighteen years of age or older, shall be subject to local and state sales tax, but shall not be otherwise taxed or regulated as tobacco products." <snip>

http://www.senate.mo.gov/14info/pdf-bill/tat/SB841.pdf

Just curious what anyone familiar with legalese makes of the situation where MO law says the above but FDA is asserting it's authority to regulate vapor products. I know the pat answer is that Fed trumps State. But in the real world federally illegal substances have been legalized in other states and the Fed has not taken an active stance to interfere. They have not even attempted to shut down B&M "federally illegal substance" stores that I am aware of in CO. This would make a huge difference in what happens with our (MO) B&M stores.

 

[zoiDman]

I'm not a Lawyer.

But I believe that MO e-liquid/e-Cigarette Manufactures and Retailers will have to Fully Comply with the FDA's rule set unless something is Changed via the Courts or thru Congress.

 

[Lessifer]

Maybe, if they only make and sell it within the state, it could be ignored like the other stuff is. I wouldn't count on it though.

 

[Rossum]

I'm not a Lawyer.

But I believe that MO e-Liquid/e-Cigarette Manufactures and Retailers will have to Fully Comply with the FDA's rule set unless something is Changed via the Courts or thru Congress.

Technically, that's correct. But if Missouri refuses to help enforce those particular regulations, it will certainly be more difficult for the feds. They'll have to send in federal agents and prosecute in federal courts. Doable? Sure, but at what cost?

 

[zoiDman]

Technically, that's correct. But if Missouri refuses to help enforce those particular regulations, it will certainly be more difficult for the feds. They'll have to send in federal agents and prosecute in federal courts. Doable? Sure, but at what cost?

True.

BTW - I wonder if MO receives any Discretionary State Funding from the Feds?

 

[Foggy Road]

True.

BTW - I wonder if MO receives any Discretionary State Funding from the Feds?

Bingo! Follow the money when the MO law changes.

 

[zoiDman]

It's funny to go back and Read stuff for way before the Deeming Hit...

"The U.S. Food and Drug Administration in April proposed rules to treat e-cigarettes as tobacco products, with rules requiring warning labels and prohibiting sales to those younger than 18. But it could be years before federal regulations are in place.

State Sen. Jay Wasson, R-Nixa, who sponsored the bill, said he added the exemption from state tobacco regulations and taxes because of pushback from the state convenience store association and concerns that a tax wouldn't pass the Republican ranks. He said restricting young people's access to e-cigarettes required quick action."

Legislature overrides governor’s veto on e-cigs

 

[BuGlen]

When you look at the MSA and tobacco bond debt for each state, it's not difficult to understand the why MO can take the position it has. They do get MSA money, but they haven't leveraged it (or future taxes) into tobacco bonds. Unlike other states who have made bad investments in tobacco bonds, the state budget isn't as heavily impacted by tobacco revenue (currently @ $0.17 per pack).

Who Has The Most Tobacco Debt?

It does appear that they're trying to raise the cigarette taxes a whole $.06 per pack with a ballot initiative this fall:

Missouri 23 Cent Cigarette Tax Initiative (2016) - Ballotpedia

 

[Alexander Mundy]

There was a divide in the legislature when this wording was introduced to state that they weren't a tobacco product. Some argued that when the FDA finalized deeming it would go against federal law. Some said they didn't care. The "Some said they didn't care" group was big enough to overturn our Governors veto. If the 2 big cities in our state weren't such a large political block we would probably be able to truly be independent of Fed money bullying, but alas if they threatened withholding we (as a state) would give in. Damn 55 MPH speed limit proved that a long time ago when as a whole we were more independent than we are today. When you give into a bully it's twice as hard to hold your ground the next time.

 

[jwelborn]

I'm an attorney and fed law will almost always trump state law unless the fed law requires the state to spend $'s to enforce it without funding or the item being regulated is completely within the state with no chance of interstate commerce (no chance of that).

 

[bigdancehawk]

I'm an attorney and fed law will almost always trump state law unless the fed law requires the state to spend $'s to enforce it without funding or the item being regulated is completely within the state with no chance of interstate commerce (no chance of that).

When and under what circumstances federal law preemps ("trumps") state law is an interesting topic of discourse for constitutional law scholars, but has nothing with this discussion.
This bill doesn't interfere with the application of federal law or vice versa. Just because the feds have deemed e-cigarettes to be tobacco products and intends to treat them accordingly does not require Missouri to do so. Missouri law enforcement agencies are not required to scour the state seizing products that haven't secured the FDA's blessing, and Missouri is free to impose or not impose taxes on various products independent of how the feds choose to treat those products.