Two New US State Laws May Seriously Hurt the Local Vape Industry

SB 0512, The Preventing Youth Vaping Act, which has taken effect in Illinois, considers any electronic device that delivers nicotine as adulterated if it has not been granted a Premarket Tobacco Product Application (PMTA) by the FDA.

However, since this state adulteration provision only applies to devices that require a PMTA authorization, it will not apply to products that are not considered “tobacco products” under the federal Food, Drug and Cosmetic Act such as products that use synthetic (tobacco-free) nicotine or CBD. Any violators of this new state law will be considered guilty of a Class 4 felony, which carries a 1-to-3-year prison sentence and fines of up to $25,000 if convicted.

Online sales ban in Oregon

While Oregon’s HB 2261, bans the shipment of “inhalant delivery systems” defined as devices that can be used to deliver nicotine in the form of a vapor or aerosol to a person inhaling or their components, to members of the public other than distributors or retailers. In other words this measure prohibits direct-to-consumer sales, including online sales of e-cigarettes.

The measure was originally proposed by Ellen Rosenblum, the Oregon Attorney General and the chief of the state Department of Justice, as a means to counter youth vaping and to offer the state’s criminal justice system tools to fight counterfeits and illicit sales.

“There is no effective way to verify an age or stop minors from purchasing these products over the internet. In Oregon, you cannot buy cigarettes online, and there is no good reason to be able to buy vape products online either,” she said earlier this year in a press statement.

No more loopholes for synthetic nicotine

Meanwhile, New Jersey Congresswoman Mikie Sherrill has just introduced the Clarifying Authority Over Nicotine Act of 2021, a bipartisan bill that grants the FDA the authority to regulate synthetic nicotine products, in the same way it regulates nicotine products made or derived from tobacco.

This means, that Illinois’ SB 0512 could soon be extended to include synthetic nicotine. As it stands, the Federal Food, Drug, and Cosmetic Act (FDCA) defines a “tobacco product” as “any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product.” However, the FDA could choose to regulate synthetic nicotine either as a “component” of a tobacco product, or as a “drug.

Read Further: The National Law Review

US Senate to Vote on Proposed Vape Tax Despite Opposition