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- “It’s Big Tobacco coming in and getting their way while us little guys will be forced out of business,” one Coast retailer says.
Over 30 years ago, Mississippi became the first state to sue Big Tobacco. The result brought over $3 billion to the state over 25 years, in a deal cut prior to the $368 billion national tobacco settlement in 1998 which included some 40 states.
The landmark lawsuit was intended to make cigarette manufacturers Philip Morris Cos., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., and Lorillard Corp. pay for smoking-related illnesses and cessation programs, among other things.
Now, lawmakers in Mississippi have passed a measure that essentially allows Big Tobacco to monopolize the vaping market under a Biden-era regulation.
Last week, the Legislature quietly sent HB 916 to the Governor’s desk. It forces consumers using e-cigarettes to buy exclusively from only three manufacturers and bans virtually all flavored vaping products.
State Rep. Trey Lamar, chairman of the House Ways and Means Committee, authored the legislation. In presenting the bill, he told members the state has “an epidemic” of unregulated products coming into the state.
Among the provisions in the legislation is a requirement that the manufacturers of vape products sold in Mississippi must be authorized by the U.S. Food and Drug Administration (FDA). Only three manufacturers of e-cigarettes are authorized by the FDA as of January 2025: Logic Technology Development LLC, NJOY LLC, and R.J. Reynolds Vape Company. NJOY is part of the Altria family of companies which also includes Philip Morris USA while Logic Technology is now owned by Japan Tobacco International.
At least two of these manufacturers – Altria and R.J. Reynolds – have been actively lobbying legislators in various states to adopt such laws and some 10 other states have enacted similar measures.
In Mississippi, the new law also requires a listing or registry of all vape products sold in the state.
Notably, the FDA’s manufacturer list states that while the products are authorized to be sold in the U.S., they are not “FDA approved.”
The FDA’s venture into the vape market began in 2009 with the passage of the Family Smoking Prevention and Tobacco Control Act which regulated the manufacturing, distribution, and marketing of tobacco products. A premarket tobacco application (PMTA) process was established, and in 2016, the FDA expanded its authority to include regulation of e-cigarettes. Non-tobacco nicotine products were added in 2022 through congressional amendment.
Various lawsuits have since been filed challenging the FDA rules. One case, which was argued before the U.S. Supreme Court in December 2024, was brought by the FDA after the Fifth Circuit Court of Appeals sided with Triton Distribution and Vapetasia, makers of flavored liquids for e-cigarettes.
The appeals court ruled that the FDA pulled a “regulatory switcheroo,” ignoring instructions given to the applicants, which they followed, and then denying their authorization.
“Over several years, the Food and Drug Administration sent manufacturers of flavored e-cigarette products on a wild goose chase,” wrote Fifth Circuit Judge Andrew S. Oldham for the majority, which said the FDA acted “arbitrarily and capriciously” in rejecting the applications.
The FDA maintains that at the core of their considerations are the impact e-cigarettes and related flavored products have on young people. As such, flavored liquids have been viewed as too kid-friendly, and the FDA has limited the flavors to tobacco and menthol.
However, based on the FDA’s own data, youth e-cigarette use was on the decline prior to this new Biden-era rule and has now dropped to lowest level in a decade, per a September 2024 report.
The Trump-era legislation that raised the federal minimum age for sale of tobacco products from 18 to 21 years is widely viewed as the driver behind these reduced statistics.
Now back in the White House, President Donald Trump is expected to have the regulation reviewed after expressing his disagreement with the rule during the 2024 campaign.
“I saved Flavored Vaping in 2019, and it greatly helped people get off smoking. I raised the age to 21, keeping it away from the ‘kids,’” Trump wrote in September 2024 on TruthSocial. “Kamala and Joe want everything banned, killing small businesses all over the Country. I’ll save Vaping again!”
The vaping industry in Mississippi is estimated to have a $135 million economic impact while paying over $30 million in annual wages and benefits to employees and nearly $23 million in business and consumption taxes.
One Coast retailer, speaking on condition of anonymity, told Magnolia Tribune that restricting products and flavors sold in their store could mean a “huge loss of revenue, upwards of a third or half of our sales.”
Under the new Mississippi law, beginning October 1, 2025, or on the date that the Commissioner of Revenue first makes the directory available for public inspection on the department’s website, whichever is later, products not included in the directory cannot be sold, either directly or through an importer, distributor, wholesaler, retailer or similar intermediary.
Retailers would then have 60 days to sell or remove the unauthorized products from their inventory or they would be subject to seizure, forfeiture, and destruction by the department, the Mississippi Attorney General’s Office, or any law enforcement agency paid for by the retailer.
“It’s Big Tobacco coming in and getting their way while us little guys will be forced out of business all because the government thinks they should tell adults what they can and can’t do with their lives,” the retailer said.
The new Mississippi law passed unanimously in both the House of Representatives and the Senate before being signed by Governor Tate Reeves.
Frank Corder
