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Recent Changes to American Legislation: The Impact on Vapers

With the vaping industry still in its relative infancy, rules and regulations surrounding it are still being defined and refined on a global scale. The most recent, and perhaps most controversial of these, is a legislative update by the US Food and Drug Administration (FDA) brought into force on Monday 8th August 2016, which changed the law regarding ‘electronic cigarettes and non-cigarette products’.

These changes to the law bring with them new restrictions on packaging, sales, and marketing of vaping products by bringing them under the same umbrella as tobacco.

How can this be the case, when e-cigarettes and vaping do not involve tobacco?

The FDA itself is able to reinterpret existing law in order to give itself previously unrecognised powers. This is how they established control over vaping products. They allege that the Tobacco Control Act of 2009 - created by Congress to allow the FDA to regulate cigarettes and tobacco products - now also gives them the authority to regulate vaping, based on the dubious claim that vaping paraphernalia qualify as ‘tobacco products.’

In 2009, the FDA tried to claim that e-cigarettes were medical drug delivery devices, in order to bring them under its control. However, the courts agreed with manufacturers that this was not the case and in 2011 told the FDA it could only regulate vapes as tobacco products under the Tobacco Control Act (except those marketed as devices intended to stop smoking). Three years later, the FDA proposed rules to do exactly that: deem nicotine containing products - such as e-cigarettes - tobacco products, despite a complete absence of tobacco.

Now, the rules subject vaping devices (known as Electronic Nicotine Delivery Systems or ‘ENDS’), to regulations under the Tobacco Control Act. The following is an excerpt taken directly from the FDA’s website: ‘The definition of "tobacco product" includes any product made or derived from tobacco, including any component, part, or accessory of a tobacco product. E-liquids that do not contain nicotine or other substances made or derived from tobacco may still be components or parts and, therefore, subject to FDA's tobacco control authorities.’ (Italics added.)

Any products introduced or modified after February 15th, 2007 are considered "new" tobacco products and must submit a premarket application to the FDA. Although this clause allows products on the market before February 15, 2007 to bypass premarket approval, as there were no e-cigarettes on the market prior to this date, it is likely that no vaping products will qualify for this exemption.

What are the reasons behind these legislative changes?

Ultimately, the FDA want to regulate the vaping market in order to protect public health. As mentioned at the start of this post, the vaping industry is still relatively young so long-term studies into its impact do not yet exist. However, what we do have is data to demonstrate the tremendous damage caused by cigarettes, with stats showing smoking kills 1,300 people every day. There is also evidence to show that vaping is 95% less harmful than smoking cigarettes.

So, what does this mean for the public, whether they are smokers or vapers? Potentially, more expensive vaping products, combined with less availability and variety would mean that fewer smokers will switch to vaping; therefore the smoking related death toll will remain high.

The market is undergoing changes and this is not all bad – a lot of the rules make sense (for example, banning sales to those under 18, and requiring childproof packaging on e-liquids). Unfortunately, however, the inclusion of vaping in the same category as tobacco products is a misleading and confusing proposition which is unhelpful to the industry and does nothing to reduce the ill-health and death toll caused by actual tobacco products.

How will this affect Grey Haze’s customers?

Thankfully, in the UK, voices of reason are still engaged in the debate and are pushing the agenda for our industry. It has been recognised that vaping plays a key part in harm reduction, enabling smokers to reduce their cigarette intake - and therefore the risk to their health - by switching to vaping. Public Health England, in an update published last year, stated that ‘an expert review of the latest evidence concludes that e-cigarettes are around 95% safer than smoked tobacco and they can help smokers to quit’. This is the stance we here at Grey Haze take, and we will continue to fight for our industry and our customers!

The author

Grey Haze


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