The FDA Shows, Once Again, That Government Values Regulation Over Innovation

Time and again we see some of the best ideas come from those who are willing to invest their own time and resources to create, improve, and perfect the next great product or trend. Vaping is a great example of that and one of the fastest growing industries today in the market.  Whether it’s new customers or those who have been a traditional tobacco user who want to try something new, the number of those using vaping products continues to increase as more choices become available in the market. Unfortunately, government regulators may have just stopped the industry dead in their tracks. 

Last Thursday, the Food and Drug Administration (FDA) released their final rule that will regulate e-cigarettes and other new products under the same authority as traditional cigarettes. The rule would ban the sale of the newly regulated products to children and it would also bring vaping products under the umbrella of the regulations set forth in the Tobacco Control Act of 2009.  This is where it becomes problematic for consumers because, “The Tobacco Control Act of 2009 sets Feb. 15, 2007, as the latest date by which all tobacco products would have to have to be grandfathered in.”

The predicate date set by the Tobacco Control Act of 2009 that will be used to regulate vaping products fails to take into consideration that the industry itself was essentially non-existent prior to 2007. The products that many people are using today will face a stringent approval process that will make it nearly impossible for small businesses to comply and continue selling what consumers are currently using, even as the industry continues to grow.

A report by the National Center for Health Statistics highlighted figures on the Vape industry highlighting the potential impact for the final rule:

• An estimated 3.7% of adults currently use e-cigarettes.

• As of 2014, 12.6% of adults have at least tried an e-cigarette.

• Among current cigarette smokers who had tried to quit smoking in the past year, more than one-half had ever tried an e-cigarette, and 20.3% are current e-cigarette users.

The first number from the study, 3.7% of adults, is equivalent to more than 9 million Americans. This is an industry that should be allowed to grow, with responsible guidelines that will help the industry in the marketplace.  Government should not pass regulations that will constrain it to near non-existence.

The FDA should use their authority to set forth rules and regulations that will allow for a free and fair competition in the vape industry. The final rule released last week instead imposes a regulatory standard that ignores the growth of the industry and the timeline under how it has gotten to this point. TPA supports legislative efforts to move the predicate date beyond 2007 because that will allow for the products to be regulated responsibly, as opposed to submitting to harsh regulations that will likely hold up the approval process for many products already on the market today.