The latest turn in the fight against over regulation of the electronic cigarette/vapor industry was released earlier today, when it was announced that a conglomerate of plaintiffs had collectively filed suit against the Food and Drug administration.
In a long-awaited move, the group filed the complaint in the District Court for the District of Colombia, making their challenge of the deeming regulations and Tobacco Control Act known. The complaint holds a flashlight to various portions of the act, calling it unconstitutional and wrong on certain administrative points.
The plaintiffs of the case are from all over the industry and nation, and are listed as follows:
- Right To Be Smoke Free Coalition
- American E-Liquid Manufacturing Standards Association
- American Vaping Association, Hoboken, New Jersey
- Electronic Vaping Coalition of America, New Berlin, Wisconsin
- Georgia Smoke Free Association, Fort Oglethorpe, Georgia
- Kentucky Smoke Free Association, Louisville, Kentucky
- Louisiana Vaping Association, Chalmette, Louisiana
- Maryland Vape Professionals, LLC, Baltimore, Maryland
- Ohio Vapor Trade Association, Miamisburg, Ohio
- New Jersey Vapor Retailers Coalition, Roseland, New Jersey
- Tennessee Smoke Free Association
While we have representatives from several smoke-free associations on this list, we have 50 states that could potentially throw their weight behind this.
The suit has also been solidly backed by The Shenzhen E-Vapor Industry Association USA (SEVIA-USA), the Smoke-Free Alternatives Trade Association (SFATA), the Consumer Advocates for Smoke-free Alternatives Association (CASAA) and NOT Blowing Smoke. Going forward the suit will likely garner the support and attention of many more companies, associations and individuals.
The grounds for the lawsuit, and more importantly the charges filed against the FDA are as follows:
We will give you the arguments as they are written and then break out of legalese to explain any key points. All sections of the suit come directly from Right2BeSmokeFree.
In a nutshell, part of the FDA’s job when regulating ENDS was to create an environment that would allow some, if not all, manufacturers the opportunity to stay in the market and give others a chance at substantial equivalency. By refusing to change the date to a time when the technology was actually in the market place, the FDA have committed a violation.
By refusing to acknowledge that vaping was deemed 95% less harmful than cigarettes and insisting that ENDS be treated in exactly the same way as their combustible predecessors, the FDA’s regulations once again fall in violation of the Administrative Procedures Act.
Count 3 states that congress encouraged the FDA to make informed decisions when it came to the risk factors surrounding various “tobacco products”. While the FDA is adamant in its stance that it is powerless to change the grandfather date or in any way show leniency towards an industry that is 95% less harmful than tobacco, history and actual legislation exists that shows they are either misinformed or deliberately misleading. The other side to such a coin, as is stated above, is the fact that congress may need to step in to give them the tools to properly regulate this industry.
Possibly my favorite count in the argument. The concept of preventing youth acceptance of vaping is something that everyone agrees with but the FDA strayed so far across the line on this point it makes very little sense. Other options were, and are, available such as identity checks on vape shops with sample bars, but the government chose to ignore those and go straight for a blanket option. By infringing on the options of adult consumers, they are once again in violation.
By denying vapers, shop owners and manufacturers the ability to state that these products are much less harmful than tobacco the FDA are not only forcing citizens to lie but they are also stomping all over first amendment rights. The British Government have deemed it fit to promote vaping as a much healthier alternative but until an American entity has parted with many millions of dollars and many years of research, the FDA is keeping its head buried in the sand.
This count goes directly to the question we have all be asking ourselves since 2014, exactly what is the rationale behind labeling vaping devices, their components and e-liquids, non of which contain tobacco as “Tobacco Products”. Other than its own will-power there is nothing that entitled the FDA to do so, and once again it is being held in violation of the law.
By refusing to take into account that 99% of the ENDS industry faces destruction due to its regulation, the FDA proceeded with actions that far exceeded its limitations. The burdensome PMTA process is prohibitive and until such time as the FDA creates a solution, the plaintiffs believe the court should bench the deeming regs.
The FDA had many opportunities prior to releasing the deeming regulations of the ENDS industry to make sure that it was being fair and honest about its aims. The main reason so many people are fighting this is because they are about to lose not only their livelihoods but also a way of life that helped them become free of cigarettes. The agency has failed in its duty on so many levels that were it not for the seriousness of driving millions upon millions back to the cigarettes that the Government and The People, united, have been trying to eradicate for years, it would be laughable.
Blanket regulations that treat ENDS as tobacco will not work for anyone with a lick of sense, and we here at GuideToVaping wish the plaintiffs in this case the very best of luck.