Even though the FDA (Food and Drug Administration) has already published its proposals for regulation of the vaping industry going forward, nothing is yet on the statute books. These proposals are still out to consultation with the industry and while many expect them to be formally accepted during 2015, there is no definitive sign off day. As a consequence the FDA has created a dangerous information vacuum which has been exploited by state authorities across the US.
Why is the FDA dragging its heels?
There has been speculation, rumour and counter rumour regarding the FDA and its role in the future regulation of the vaping industry. Many people will be unaware that the FDA effectively tried to ban electronic cigarettes just a few years ago only to have this ruling overturned in the High Court leading to an embarrassing U-turn. Perhaps this was a taste of things to come with some experts questioning the administration’s “unbiased” approach to the industry?
If we take a step back and look at the situation from a distance, there are so many supporters and critics of the industry that it is difficult to consult with everybody. It is common knowledge that the tobacco industry is lobbying behind-the-scenes despite the fact many of the larger companies have already started to invest significant amounts of money into the industry. Indeed one of the major tobacco companies is championing a ban on e liquids while attempting to maintain the status quo on electronic cigarettes. Does this make any sense?
State authorities take the lead
As we alluded to above, the emergence of a dangerous information vacuum as a direct result of the FDA’s incredibly slow move towards the creation of a regulatory framework has been exploited by some state authorities. We have seen a number of bans as well as talk of specific electronic cigarette taxes which many see as the long-term replacement for tobacco taxes.
It is difficult to see how the state authorities can justify this ongoing pursuit of the vaping industry when the vast majority of medical trials to date have been very positive. True, we have seen some damaging headlines but very often on further investigation these criticisms crumble and disappear. Indeed, only a few days ago we had medical experts in the UK confirming that it was difficult to publish positive data on electronic cigarettes although the press have an insatiable appetite for negative research and controversial headlines.
There is a real danger that the vast majority of states across the US will already have introduced their own specific electronic cigarette taxes and regulations before the FDA finalises its own position. If this is the case, will the FDA force state authorities to repeal their laws or will they stand side-by-side with the FDA’s long-term structure?
While supporters of the vaping industry may be a little heartened by the fact the FDA has been so slow to confirm the long-term regulatory structure, this is perhaps not all positive. The creation of an information vacuum has allowed many states across the US to introduce their own electronic cigarette regulations with minimal resistance. There is a growing suspicion that the FDA is dragging its heels on purpose to create confusion and uncertainty around the electronic cigarette industry.
At the end of the day, would any independent electronic cigarette company feel comfortable investing hundreds of millions of dollars for the future without knowing the regulatory structure?