In our third State AG Pulse episode in season 5, the State AG Group’s Chris Allen and Emily Yu liken state AGs’ approach to Chinese e-cigarette manufacturers to a game of regulatory Whack-A-Mole and warn companies that make products that impact consumers’ health or minors that they will be subject to close scrutiny by state AGs.

(00:33): Chris Allen introduces today’s speakers: himself and State AG Group associate Emily Yu. He introduces the topic – state AGs take very seriously their responsibility to police companies, particularly those that have an impact on consumer health and on welfare. The first example that Chris and Emily use to illustrate this point is an action taken by a coalition of Republican state AGs involving Chinese e-cigarettes.

(02:16): Emily explains that the Republican AGs sent a letter to a wide variety of federal leaders and agencies including USDOJ, Commerce, HHS, Homeland Security, FBI, FTC, and Customs and Border Protection. She reviews the history of AGs’ interest in flavored tobacco products.

(04:35): Chris clarifies that notwithstanding the expansive authority of AGs, they still have to rely on their federal counterparts when they try and take on public health issues like this. They agree that given the trade and tariff situation with China at the moment, it’s a rough time generally to be a company that’s doing business in or with China.

(05:48) Chris compares the e-cigarette companies’ playbook with the ways tobacco companies, and also cannabis companies, have sought to avoid regulatory scrutiny in the past by making small changes to their chemical formulation and by moving up and down the supply chain until they find a choke point that allows them to effectively throttle sales. Emily warns that this playbook is applicable beyond the e-cigarette scenario and highlights the regulatory risk faced by international companies and those with large, complex supply chains.

(09:33): Chris emphasizes the reality that companies whose products impact consumers’ health are going to be high up the AG priority list, illustrating his point with a dietary supplement industry example. He and Emily segue to a discussion about another recent action by the Texas AG targeting Kellog,  whose cereal products are a mainstay of Americans’ breakfasts.

(11:33) Emily points out that products marketed to children and that impact either their physical well-being or their mental health are also likely to attract state AG scrutiny, for example social media.

(12:01) Chris agrees and points to Roblox as another example where children’s privacy practices are in the AG spotlight.

(12:49) Emily predicts that we will see more examples like the e-cigarette action where AGs, especially Republican AGs, seek out partners with similar goals and enforcement priorities in the federal administration and engage in communication with them to help them achieve their enforcement goals.

(14:09) Emily adds that although there were no Democratic signatories to the e-cigarette letter, that does not mean a lack of interest in the issue by Democrats. Chris postulates that the lack of Democratic signatories in this instance may have been related to the sycophantic language in the letter, designed to elicit attention from the government but likely to have deterred Democrats from signing on.

(17:27) Chris sums up the takeaways: (1) it’s necessary to work with the federal administration and agencies to address issues of international concern (2) Republicans have an obvious political advantage (3) nonetheless Rs and Ds are aligned on their goal of protecting consumers, particularly when it comes to their health and children.

(19:10) Emily adds a further takeaway that the scope of state level enforcement and regulation is likely to continue to expand and draw in federal agencies for the next few years.

To listen to the full podcast, click here. To listen to a particular section, open the recording and use the time stamps provided above to navigate to the desired part.