In January, the U.S. Court of Appeals for the Ninth Circuit ruled 3-0 that the Dormant Commerce Clause does not prohibit states from imposing residency requirements for obtaining marijuana business licenses. The court found that the federal illegality of marijuana renders Dormant Commerce Clause protections inapplicable, cementing a circuit split on the constitutionality of state residency rules for marijuana licenses.
The Florida attorney general (AG) recently initiated legal proceedings against several Florida smoke shops, alleging violations of state law related to the sale and marketing of illegal nicotine products, particularly vapor products, to minors. The action targets multiple businesses, including 27 Smoke Shop Inc., A&A Smoke Shop LLC, Alami 9 LLC, Alami 10 LLC, Epic Novelty LLC, and Fuego Smoke Shop LLC. The complaint, filed in the Fifth Judicial Circuit, accuses these retailers of selling, shipping, or failing to remove from their inventory nicotine products that are classified as illegal contraband under Florida law, with a particular focus on products marketed to children.
Troutman Pepper Locke is once again well represented on the Food and Drug Law Institute’s (FDLI) committees for 2026, underscoring the firm’s continued leadership on issues affecting FDA‑regulated industries, including tobacco and nicotine.
On January 5, 2026, Colorado Attorney General (AG) Phil Weiser announced that MC Global Holdings and affiliated persons and entities (collectively, MC) had been fined for allegedly violating the terms of a May 2025 assurance of discontinuance. The defendants, who are engaged in manufacturing, packaging, labeling, distributing, and/or selling industrial hemp products under the brand Vivimu, agreed to a fine of $575,000, of which $500,000 will be suspended as long as they comply with the terms of the new agreement.
We recently covered this case here, in which a small manufacturer and retailer sued the Virginia attorney general (AG) and tax commissioner in the U.S. District Court for the Eastern District of Virginia, seeking to enjoin enforcement of the vapor product directory law. See Nova Distro, Inc., et al. v. Miyares et al., No. 3:25-cv-857 (E.D.V.A.). There, we also noted another ongoing case challenging a similar law in North Carolina, for which oral argument is scheduled before the U.S. Court of Appeals for the Fourth Circuit on January 29, 2026. See Vapor Technology Association, et al. v. Wooten et al., No. 25-1745 (4th Cir.).
In this episode of our special 12 Days of Regulatory Insights podcast series, Chris Carlson is joined by colleagues Bryan Haynes and Agustin Rodriguez — members of our Tobacco and Nicotine Practice and RISE Practice Group — to review the year’s most consequential developments in the tobacco and nicotine space and what they mean heading into 2026.
Congress has enacted H.R. 5371, the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026. Section 781 of the law substantially amends the Agricultural Marketing Act’s definition of “hemp,” tightening the THC threshold and explicitly excluding several categories of hemp-derived cannabinoid products from the definition. Because the Controlled Substances Act (CSA) excludes “hemp” by cross-reference to the Agricultural Marketing Act, narrowing the hemp definition will push many currently marketed intoxicating hemp products back into Schedule I status under the CSA once these changes take effect.
Earlier this fall, a small manufacturer and retailer (the plaintiffs) sued Virginia Attorney General (AG) Jason Miyares and Tax Commissioner James Alex (the defendants) in the U.S. District Court for the Eastern District of Virginia, seeking to enjoin their enforcement of Virginia’s vapor product directory regime, Va. Code Ann. §§ 59.1-293.14 to .21, which the General Assembly passed in 2024.
On October 27, the FDA appealed a decision of the U.S. District Court for the Southern District of Georgia that vacated the agency’s 2020 rule requiring graphic health warnings on cigarette packaging and advertisements. This appeal to the U.S. Court of Appeals to the Eleventh Circuit, along with a separate challenge pending before the Fifth Circuit, may determine whether the FDA’s second attempt to impose graphic health warnings on cigarettes will be successful.[1]
The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) legalized industrial hemp for commercial use to support American farmers and create a regulated industrial hemp market. The 2018 Farm Bill defined “hemp” as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” The 2018 Farm Bill also removed hemp from the definition of “marihuana” under the Controlled Substances Act. Since 2018, many in the hemp industry have relied on language in the 2018 Farm Bill’s definition of “hemp” (sometimes referred to as the 2018 Farm Bill loophole) to take the position that it authorizes the production and sale of intoxicating, hemp-derived THC products (e.g., beverages, gummies, candies, etc.) that are derived from cannabis plants containing less than 0.3% delta-9 THC on a dry-weight basis. On October 24, the National Association of Attorneys General (NAAG) sent a letter to congressional committee chairs, signed by 39 state and U.S. territory attorneys general (AGs), urging immediate legislative action to close the loophole.