There have been a lot of laws that have been threatened or enacted in the last few years as the government tries hard to deal with the massive E-cig black market that has disturbed cigarette sales so much. Earlier this year we were threatened with a ban on sending vape products through the mail, which luckily didn’t go through. Now, the FDA approaches a September deadline for deciding which vape products get to stay, and which must go, with some already removed. The FDA is still trying to limit vaping, despite it being a healthier option.
We’ve known for awhile that the FDA is trying to limit vaping by instituting lots of weird new laws that don’t make sense. Luckily, there’s plenty of pushback which means this industry should stay intact. This is good news for people who like products like delta-8 THC, an alternate to delta-9, which creates less psychoactive effect, less anxiety, and less couch locking. Best to keep your eye on changing laws, but for now, we’ve got plenty of delta-8 THC, delta 10, THC-O, HHC & THCV deals, so go ahead, and vape your heart out!
What is this deadline?
What’s happening right now is not a new law that was just passed, but the follow-up to a law issued May 10, 2016 by the FDA. This law set regulation standards for cigarettes, smokeless tobacco, and loose tobacco, which had technically started back in 2009 with the Family Smoking Prevention and Tobacco Control Act, but which got more strength due to the update in 2016. As per the 2016 update, applicable companies have to comply with the following. Some, like the minimum age requirement, were enforced immediately, and other provisions related to new products, are being dealt with now:
- New products can only be advertised after a review by the FDA.
- New products cannot use claims of being safer or reducing risk, if the FDA decides there isn’t enough scientific evidence to back it up. The product providers must prove it can benefit the health of everyone.
- Companies must submit ingredient lists.
- Companies must register domestic establishments, and submit the list of products specifically manufactured at each location, including labeling and prospective advertisement of products.
- Companies must submit tobacco heath documents.
- A minimum age restriction of 21, and ID required at point of sale.
- A requirement for health warnings on packaging.
- A stipulation banning vending machine sales so long as the machines are accessible to minors.
Originally, the deadline to submit an application for product approval for products already on the market, was May 2020, 10 months after a July 2019 court ruling that put a deadline on E-cig companies to apply for review by the FDA. This was extended 120 days until September 9th 2020. Applications are set to be done review by September 9th, 2021, the end of the one-year grace period for products to remain on the market while being reviewed…although this has not been the case entirely.
To give an idea of how much trouble the US government is already having getting companies to comply, consider that over 120 warning letters have already gone out since May 31st of this year, to companies selling unauthorized products. The companies in question have listed over 1.2 million products with the FDA. By September 9th, 2021, the FDA is supposed to have decided which companies can stay, and which must go, although this already shows how much trouble the FDA will have with actually policing this rule. Regardless, the rule makes clear the the FDA is still trying to limit vaping, despite it being the better option.
The vape mail ban?
The vape mail ban is a set of regulations that got stuck into a corona relief bill, and passed, under the cover of night. The ban wasn’t a ban, so much as enforceable guidelines on how all vape products must be sent in the mail, regardless of whether they are cannabis-related, tobacco-related, or even medical-related products. The strict guidelines make it very costly to ship products, and to enforce standards. The ban applies to USPS, and all major shipping services – UPS, FedEx, and DHL, were all talked into participating.
Of course, tons of little guys jumped at the opportunity to move their own businesses forward, and this might have been a reason that the ban was put off, perhaps to appear again later, perhaps not. The ban, much like this new update, is geared toward the idea of helping youth from becoming addicted to nicotine, but that’s kind of silly since we know that the youth will do what they want, they have been for all of humanity, and that providing a safer option is the better idea than taking away the safer option, and expecting not to have a bigger issue. The FDA has been trying to limit vaping for quite some time now, always saying its better for kids, when the opposite is true.
The vape mail ban, if it ever does go through officially, would require the inclusion of new taxes, and all kinds of regulatory oversite not accorded to other industries with higher danger, even down to how packages can be sent out and received. And while instituting a little regulation isn’t always a bad thing, the place where it needed to be, was with regulating what can be put in products in order to not cause the isolated events that we tend to see, when a bad compound is used. My personal guess is that UPS, DHL, and FedEx were unhappy at prospective losses, and pushed for this to be stymied.
Smoking vs vaping
One of the undeniable truths about all this is that it pits smoking against vaping – like it or not. This idea that taking away vapes will mean kids won’t ingest nicotine, is one of the silliest points of anti-logic imaginable. Cigarettes, and smoking in general, whereby something is lit on fire and the contents are inhaled, causes 480,000 deaths a year, 41,000 of which are from secondhand smoke. Ever heard of a secondhand vape death? Didn’t think so! Neither have I. Nether has anyone else. The reality is that laws like this one, and what the FDA is doing now by trying to limit vaping, actually work to hurt everyone – including children – way more. As long as nicotine products exist, kids will be using them, so why take away the products that cause universally less damage?
In fact, even according to the CDC, the totality of this ‘vape epidemic’ is an entire 68 confirmed deaths between the invention of vaping (early 2000’s) and the beginning of 2020. And these deaths have yet to be related to a compound outside of a mixer, filler, flavor, or another chemical added for some other reason, but which is expressly not what the vape is sold for. These other compounds really should be regulated so that dangerous chemicals don’t end up in vape products, but rather than regulate this aspect, the FDA is continually trying to take away the safer option, by putting this limit on vaping products, and using all kinds of weird reasons that don’t make sense.
What does make sense? It makes way more sense that the government is doing what it always does. Trying to close a tax hole that exists from this massive unregulated black market. You see, when it was just about cigarettes, the government was okay with not removing them, and still hasn’t. Wouldn’t that be the better idea? I mean, if the idea is to keep kids off of something killing so many people, why not just get rid of the cigarettes? Instead, the government is making wonky rules to try to rule out products that it can’t tax.
So why not just regulate the whole market and end this issue? If the recent California bailout decision for cannabis companies shows us something, it’s that these industries which were born out of massive black markets, are incredibly hard to tame, and divert to regulated markets. Partly because of how unintelligently governments have been applying taxes to products with a natural price point. Much of which could be alleviated by the government not being so greedy. Right now, the government would likely put out more money to police it all, than it would make back in taxes from the companies it could control.
But it also can’t let it go, because it hates seeing open tax holes, and probably more importantly, the cigarette industry still pumps millions into legislators (although considerably less than it used to, which shows how public opinion can eventually shut down a bad industry on its own). One of the unfortunate consequences of corona, and the vaping smear campaigns, has been a decrease in vaping, and a return to regular smoking in the last year.
Big tobacco used to own the entire smoking market. Now it doesn’t. Much like big pharma, its now in competition with smaller, independent companies, and this means major losses for big tobacco. What do corporations do when they start losing money to smaller businesses that don’t pay off the government? Make the government introduce rules that are useful for the big corporations. Let’s be honest, whether a person believes in global warming is so not the point. We already know, and aren’t even debating, that our mass production industries lower our air quality, literally to the point of making people sick.
Why hasn’t the government immediately stopped all oil drilling and production in favor of environmentally better methods? Well, it could be all that money from big oil that gets put into politician pockets. We already know that the government makes the majority of its big moves to satisfy big corporations throwing in money, so its not surprising that the US government would continually try to backhandedly get people back onto the cigarettes of big tobacco, then to have safer vaping methods. And if nothing else, to block out smaller vendors so that big tobacco can take over the vape industry. Regardless of how you look at it, it’s mainly for them, and the politicians working with them.
Into the future
It’s good to remember that a large black market cannot be easily taken down, and while this can be bad when looking at things like child pornography or people trafficking, or scary additives being added to products, it’s not the worst thing in a case like this. If the government wanted to be decent, and regulate the industry properly, then it would be okay. But so long as the government continues to fear market that a safer option is actually the more dangerous option, then there isn’t much reason for product producers to respect it. And as we’ve seen in the cannabis industry specifically, they won’t.
The E-cig market is huge – valued at $15 billion in 2020. Huge enough that the government can’t really get ahold of it. And this means that the black market can compete with the corporate big tobacco market, and this makes it difficult for the government to make moves since its not a small amount of opposition it faces each time. Plus, no government wants to look stupid and weak by making big directives that aren’t followed. And so, while some products like Juul might have to go (and really, should we be that upset about losing this one?), it will be extremely difficult for the US government to continually regulate this market, and the daily new entrants to it. I expect it’ll be a whac-a-mol case where 10 new products pop up, for every one that the government takes away.
As a writer in the industry, I want to make clear, that regulating what is allowed in products is key. All issues have been related to additives so far, so regulating what can be used for flavor, or liquid thickness, or for stabilizing, or preservatives, would keep out dangerous compounds. If this could be done without excessive taxation, it could even work long term. This would help protect people from the few instances where something that shouldn’t have been added in, like vitamin-e-acetate, was. It can be a dicey industry, with a lot of low-level companies looking to make a buck, and without regard to consumers. This is bad and should be regulated out. But the rest? Good luck to the government, its sure going to need it!
In the end, the FDA has a terrible argument in trying to limit vaping. 480,000 deaths a year vs 68 from almost two decades? Realistically, the US government argument is one of the funniest ones around. Kids are going to smoke, best to give them a better option, right? Of course, for anyone worried, probably no reason to be. This industry is huge, and not going anywhere, despite how much big tobacco tries. And honestly, aren’t we done already with big tobacco as the body regulating our smoking habits???
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Disclaimer: Hi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.