Court Upholds Marketing Rules for e-Cigs

But undeterred vapers are driving across state lines for products.

December 12, 2019

WASHINGTON—A federal appeals court in Washington, D.C., has upheld the Food and Drug Administration’s (FDA) regulatory authority over electronic cigarettes, which deliver a vaporized form of nicotine to users, reports Bloomberg.

The ruling came in a lawsuit brought by e-cigarette maker Nicopure Labs and the Right to be Smoke Free Coalition, an industry group, and it affirms the FDA’s power at a time when the agency is expected to announce new restrictions on e-cigarette flavors.

The unanimous three-judge panel said the FDA’s required application to produce and market e-cigarettes was rational because the new products “are indisputably highly addictive and pose health risks, especially to youth, that are not well understood.”

Nicopure and the Right to be Smoke Free Coalition argued that the FDA violated the federal Tobacco Control Act by failing to provide an easier path to market for their products and their First Amendment rights by banning the distribution of free samples.

“The First Amendment does not bar the FDA from preventing the sale of e-cigarettes as safer than existing tobacco products until their manufacturers have shown that they actually are safer as claimed,” U.S. Circuit Judge Cornelia Pillard wrote for the court.

The FDA still faces stiff resistance from trade groups and conservative activists in anticipation of its e-cigarette flavor restrictions. Many lawmakers and regulators lean toward removing them from the market in order to address the issue of under-age vaping. Opponents say flavor restrictions will stifle the e-cigarette industry while eliminating thousands of jobs and small businesses.

In November, the Trump Administration was expected to announce a ban on all flavors except tobacco, but the policy has been stalled by a last-minute lobbying.

Meanwhile, Massachusetts residents are purchasing electronic cigarettes in New Hampshire and Maine, as Massachusetts Governor Charlie Baker temporarily banned both nicotine and cannabis vaping products following an outbreak of vaping-related lung injuries.

At Stoner & Co., a cannabis dispensary in Biddeford, Maine, vape sales rose 76%, and at Arcus Vapors in Nashua, sales have doubled, reports the Boston Globe.

“It’s putting me through so much extra hassle,” said Kevin Niemira, 30, a Harvard, Massachusetts, food truck owner. “I’ve come up at least four or five times. It feels better for me—I really don’t want to go back to real cigarettes because it’s that noticeable in my health.”

The surge in border sales is the most visible impact, but the ban is affecting people in other ways. More Massachusetts residents have requested the state’s free nicotine patches, gum and other help to quit. And the state’s rapid decline in sales of traditional cigarettes slowed for a period, going from a nearly 10% year-over-year decrease during the month before the ban to a 4% drop during the month after it took effect, according to Piper Jaffray, which tracks the sector.

The Baker administration didn’t dispute those numbers, but said that in November, the ban’s second month, cigarette sales fell by nearly 20%, the second-largest drop in three years. A spokesman said the sales fluctuate monthly, and it’s not always clear why. Many vape shops in Massachusetts have closed, and employees were laid off.

Massachusetts’ temporary ban on all vaping products was put into place when hospitals began reporting lung problems among e-cig users. That temporary ban was lifted yesterday at noon allowing Massachusetts stores to resume selling unflavored nicotine vaping products today. But already a new law, which was detailed in a recent NACS Daily, is in effect. That new ruling is the nation’s toughest yet on flavored tobacco and nicotine vaping products, and the new rules are expected to be posted on the Department of Public Health’s website today.

Other public health specialists believe Baker’s ban may have caused harm by pushing people to traditional cigarettes or to the illicit market. About 31% of 169 Massachusetts residents surveyed online by the Cannabis Community Care and Research Network said the ban made them purchase illicit marijuana vape products. The state’s illicit market for pot vapes is said to be easily accessible, and numerous online delivery services are openly operating.