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FDA vaping regulations update

FDA Imposes Limited Ban, Spares Most Vape Systems

In a stunning move that spared the burgeoning but recently maligned vaping industry, the Food and Drug Administration announced that it will ban a specific type of fruit- and mint-flavored nicotine vape products.Declared as a means to stem the tide of underage vaping and to address the lung illness epidemic, the FDA nevertheless gave a critical pathway for the thousands of small businesses that depend on vape-related revenue streams.

While some mainstream media outlets have characterized the FDA ban as a comprehensive one, in reality, it’s a focused ban that balances the interests of small businesses and the public good. What the federal agency has done firmly is to prohibit the manufacture of flavored closed-cartridge e-cigarettes – that is, devices with non-refillable e-liquid reservoirs. The FDA is giving such product distributors 30 days to comply or risk facing regulatory action. 

Obviously, this impacts the product that’s at the heart of the so-called vaping crisis: Juul. Featuring ultra-high nicotine content, Juul e-cigarettes are sleek, non-descript devices that is easy to deploy and just as easily concealable. Moreover, these closed-cartridge e-cigs offered multiple flavor options, including candy-inspired and tropical-blend concoctions that underage users find attractive.

However, the FDA ban is significant for what it doesn’t restrict. For months, vaping manufacturers and retailers – many of which are small businesses comprised of hard-working families – stood on edge. As the number of illnesses and deaths ticker higher, several state governments called for outright bans on vaping.

Additionally, President Donald Trump toyed with the idea of imposing a federal ban on flavored vape products. Such a draconian measure would obviously obliterate the vaping market, which up until this time had no such overbearing oversight beyond the reasonable regulations that comprise consumer-specific industries.

Fortunately, common sense reigned supreme. Popular vaping devices that feature refillable e-liquid tanks are exempt from the FDA ban. Even Juul products themselves can be distributed, so long as they don’t contain flavored (including mint) pods. However, Juul e-cigarettes that are tobacco or menthol flavored should pass the FDA’s sniff test.

Again, it’s a moment of rationality and a rare one at that. But just how did we get to this point?

A Brief Synopsis of the Vaping Crisis

For many years, the vaping industry operated as a powerful but relatively niche consumer market. Silently and diligently serving the needs of millions seeking a viable alternative to traditional cigarette smoking, vaporizer manufacturers and retailers enjoyed a symbiotic relationship between distributors and consumers that is rarely, if ever found in the business world. Yet all that changed in 2019.

At first, isolated reports of allegedly vaping-related lung illnesses trickled in from various communities starting in the spring of last year. But by September, a small handful of these illnesses tragically turned fatal. A month later on Halloween, new agencies reported 1,800 lung-illness cases and 37 deaths.

According to the latest report (dated December 23, 2019), the illness count has increased to 2,506 with 54 deaths.

Making matters worse is that a percentage of the cases involve young, college-aged (18 to 24 years) men. A small segment of the vaping illnesses has also afflicted those under 18 years old. Naturally, concerned parents raged against the vaping industry.

Right or wrong, arguably most parents defending their children may not always think rationally. Honestly, it’s human nature. However, lost in this necessary discussion was that “real” vaporizer systems – that is, a device that contains a battery and a standalone, refillable vape tank – were not the culprits of the illness outbreak. Instead, they’re devices used to help addicted adult smokers transition out of a harmful habit.

That said, to the public, a vaporizer is a vaporizer. Certainly, the mechanics appear almost identical to passersby: liquified flavors are heated not burned, eliminating the lion’s share of toxic byproducts associated with combustible (traditional) cigarettes. Because of this similarity, vaping critics found it easier to scapegoat the entire industry rather than to exempt enterprises serving legitimate needs.

As a result of the public uproar, several states imposed vaping bans of various magnitude: most elected to limit flavored products while Massachusetts essentially banned the practice outright for a four-month period, quickly putting many small companies out of business.

At the peak of the crisis, it appeared that the White House would follow suit with a federal ban. However, anti-vaping advocates weren’t counting on one factor: vaping’s surprising ability to unify a diversity of voices under a single, cohesive message.

Silent No Longer

Modern politics has devolved into a two-way fecal show. No matter which candidate wins, chances are, the promised changes never arrive, or are delivered in a muted, compromised iteration. On the flip side, the fear mongering thrown by the opposition party doesn’t quite materialize as advertised.

But when it comes to disrupting livelihoods, this is often the last straw for even the most apathetic individuals. After all, this is the equivalent of taking food out of people’s mouths. When faced with such fundamental threats, people protest and protest aggressively. What other choice do they have?

While acknowledging and respecting the concerns of health advocacy groups, the vaping industry came together in an impressive show of solidarity. From small business owners to vaping’s big dogs, all the way down to the individual enthusiast who now faced a threat to his or her chosen platform, they gathered to set the record straight.

And what was the biggest contention? That a massive gulf exists between closed-cartridge e-cigarettes and vaporizers. One had the backing and deep pockets of Big Tobacco, while the other comprised mostly of entrepreneurial organizations filling a growing need for alternative tobacco solutions.

It’s not just about big corporations hurting the little guys, although that dynamic is readily apparent. Rather, it’s that the two platforms seek completely different purposes. Closed-cartridge e-cigarettes like Juul feature incredibly high nicotine content. Clearly, their aim is to create a new generation of addicted users. Therefore, it’s no surprise that federal authorities took a dim view on the Altria-backed e-cig maker.

In contrast, the main purpose of vaporizers is to wean off nicotine, later leaning toward eliminating vaping altogether. That’s why multiple e-liquid companies offer gradations in their nicotine content. For many folks, it’s much easier to gradually quit than to go cold turkey at once. Furthermore, the rich flavors offered by most e-juice manufacturers takes the edge off nicotine withdrawal procedures. This is the primary reason why vaping advocates opposed flavored vape bans.

And by appealing for reasonable regulations, the broader vaping community presented a compelling counterpoint to the mainstream narrative. This wasn’t a group of cold, callous miscreants seeking to undermine public health. Rather, these were often heads of families trying to rid themselves of a deadly addiction! Some, in their conviction toward the platform, have risked everything to start businesses helping others achieve the same.

That got the attention of many folks observing from a distance. But what really set the ball rolling for favorable federal mandates was the vaping industry’s core but underappreciated attribute: an incredibly powerful voting bloc.

Vapers Vote Too!

In marginalizing the vaping enthusiast community, anti-vaping organizations and disinformation agents in the media forgot one critical point: vapers are first and foremost human beings. Second, as American citizens, they form a voting bloc that cannot be easily ignored or dismissed.

In 2018, Reuters reported that almost one in twenty, or nearly 11 million American adults used vaporizers or e-cigarettes. Furthermore, the vaping community cuts across race, ethnicity, gender identity, orientation and religion, among other social classifications. Put another way, vaping has achieved what the binary political system has failed to do: inspire people from different backgrounds to peacefully and productively cooperate.

With their eyes set toward the 2020 elections, these vape enthusiasts have now become ardent political activists. Witnessing their favorite vape shops torn down by myopic and reactionary laws and emergency mandates, most have become disillusioned with the politicians responsible for such actions. Invariably, a reckoning will occur in November.

Not only that, the vaping voting bloc is evenly distributed across the U.S. Although nominal concentrations in major economic powerhouses such as California and New York are to be expected, vaping occurs everywhere. Indeed, lung illness and death cases have occurred conspicuously in what is likely to be key battleground (or swing) states.

According to the latest lung-related death statistics, a majority of swing states have suffered at least one fatality. That implies a robust bloc of vaping enthusiasts in those states, suggesting that they can make a very pronounced impact in the 2020 elections.

Vaping Death Swing States

That’s because one of the pivotal elements of battleground states is that they’re almost always evenly contested. It’s by the slightest of margins that a presidential candidate will win these all-too-crucial markets. Therefore, it’s not a surprise that President Trump offered a mitigated vaping ban: he may be many things but he’s not stupid.

According to many industry insiders, it’s one of Trump’s brilliant pieces of negotiation. On one hand, he appeased parents who are concerned about underage vaping by directly addressing the vaping industry’s most controversial player. However, he didn’t malign small business, understanding that this segment drives job growth in the U.S.

Plus, they’ve become an inspired group of voters, often residing in critical swing states. For Trump, playing fair with vapers was a no-brainer.

Long-Lasting Consequences

Thanks to the combined voices of vaping enthusiasts, product manufacturers and small business retailers – along with advocates of individual freedoms – rationality ultimately won the day. However, the limited FDA ban wasn’t a complete victory for the industry. Unfortunately, the misguided opposition colored the market with a false narrative and framework.

Specifically, the grievance many vape enthusiasts have against the anti-vaping crowd is their inability or unwillingness to distinguish the legitimate players from the bad actors. In late December, the Centers for Disease Control and Prevention labeled vitamin E acetate as the primary culprit for the rash of lung illnesses and deaths. Indeed, the CDC and other health agencies have long suspected the substance.

However, they failed to exercise restraint during the initial analysis into the health crisis. Rather, the CDC recommended that people stop all vaping until they concluded their investigation (to be fair, the FDA recommended that vapers stop using marijuana-based products or illegal brands, not stop the practice altogether). Of course, such a stark warning biased an already alarmed public.

Moreover, this isn’t just a matter of “no harm, no foul.” Even as substantiated information came to light, the initial, unverified rumors imposed tremendous influence on how the public viewed the vaping industry. And with regular folks rallied up into an emotionally heightened state, this inspired politicians to score cheap points with their constituents.

Of course, we know what happened next: scores of small businesses shuttered. Even more outrageous is that they had absolutely nothing to do with the vaping illnesses!

We can say this with confidence because vitamin E acetate is a substance that is not found in legitimate vaping products. As The New York Times reported, vitamin E acetate is essentially the exclusive domain of illegal vaping brands, such as Chronic Carts and the notorious Dank Vapes.

A common criticism of government overreach, the political class merely succeeded in infringing vape enthusiasts’ rights while failing to address root causes.

Cannabis an Unfair Scapegoat?

Yet another victim in the search for a scapegoat was cannabis. Often maligned as it is, U.S. public sentiment has gradually and consistently moved in favor of full legalization. And in the previous two elections, a record number of states have voted for cannabis freedoms to varying degrees.

After decades of advocates making the case to the American people that cannabis presented limited harm, if any to society, they must have felt incredible frustration at the media coverage of the vaping crisis. In one fell swoop, the green plant was again public enemy number one.

Regrettably, many if not most of the illicit vaping products that utilized vitamin E acetate also featured high levels of tetrahydrocannabinol (THC) content. With THC being a cannabinoid of the cannabis sativa plant, the public – in their heightened emotional state – jumped to a seemingly logical conclusion: cannabis-based products are harmful.

However, this too is a false narrative. Although Canada has also suffered alleged vaping-related illnesses, the number of cases, as of December 2019, was only 13. Compared to a population of roughly 34 million, this is an incomprehensibly small number. Furthermore, no deaths to our knowledge has been reported.

Canada, though, has one distinction that gives cannabis a clear reprieve: the country has fully legalized recreational (THC-based) marijuana.

Here in the U.S., marijuana is still considered a Schedule I drug, the highest classification for controlled substances. Yet no one is dying from vaping incidents up north, where THC-laced cannabis is readily available. Something doesn’t add up.

In all likelihood, the combination of illegal vaping products with risk-taking behaviors from young males represents the driving force behind the vaping crisis.

Lessons (Hopefully) Learned

Years from now, what history will remember most from the vaping crisis is a critical lesson: don’t rush to judgment, especially without reasonable evidence. Certainly, lawmakers should avoid passing laws on false, misleading or incomplete information.

While politician often operate in the realm of the theoretical, the damage rendered to Main Street businesses was very much real.

Perhaps the greatest tragedy of all is that the draconian, unrelenting response was unnecessary. If investigators took the time to analyze true causes and if the mainstream media toned down their sensationalism, we could have achieved a rational solution without imposing irretractable economic damage.

Of course, with the trajectory of our vicious “cancel culture” that seeks immediate karmic justice without thought for true causalities, we are cautious about extending too much faith in the U.S. political system. Still, the lasting devastation from this vaping witch hunt should at least give lawmakers pause the next time a major crisis occurs.

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