If you know much about America, it’s that we love to sue since we know our rights and once they are infringed, it’s only natural for us to take action against those who infringed them. Well, this is no different in the case of three Alabama business owners running vape shows which are of the opinion that the new FDA regulations that were adopted back in May 2016 (which are to come into force this coming August) will literally annihilate their business alongside the entire vaping industry.
Sounds like a rather bold statement, doesn’t it? Well, this newly introduced FDA rule acts as an extension of the Tobacco Control Act of 2009 which gave power to the FDA to act as the ultimate regulatory body with a purview over all forms of tobacco products. What this new FDA rule does is to give further power to the FDA to act as a regulatory authority over all types of vaping products and devices (e.g. e-liquids, vaporizers, atomizers, etc.) and has dubbed the meaning of “tobacco products” to include vaping products even when they do not contain any form of tobacco – which is a rather far-fetched statement considering vapers all know that the two are very different in every way possible. Well, at least that is what the law suit is stating.
What these three businesses (who are suing the FDA) state is that the products typically sold in vape shops include e-cigarettes and e-liquids. In no part of the process is there any burning of tobacco or use of tobacco (unless the user purposely mixes it into the equation). In other instances, there may be e-liquids which contain nicotine which has been derived from tobacco however once the derivation is done, the product does not contain tobacco – just its nicotine. It should be noted that this is no longer an isolated incident, as more and more companies are piling up their own cases against the FDA.
“The vast majority of the plaintiffs’ products – including hundreds of products not made from or derived from tobacco or intended for human consumption – will be subject to the premarket approval, reporting, record keeping, inspection, labeling, manufacturing, testing, and other requirements imposed by the Act” advocated the complainants.
Joe Hubbard, representative of the companies who are involved in the suit, stated that the result of the introduced regulatory expenses would cost local businesses an estimate of $390,000 to $790,000 at first instance and an annual cost for compliance of a minimum $450,000. These costs are the main factor for the worry and concern of negative effect the new FDA regulations are to create thus eliminating all forms of profits or in the event the businesses ramp up the cost of the products to make profit, eliminate their business altogether. An example of this negative setback would be Operation Vapor, a Daleville vapor shop which only profits around $186,000 annually as revealed by its business owner Karen Anderson.
Scott Eichelberger, the President of Breathe Easier Alliance of Alabama (a proactive group with the aim of protecting the vape industry in Alabama), brought up a very alarming opinion saying that “realistically, there’s going to be no products to sell. I don’t see vapor shops making it”. Truth behind it, if the upfront cost reach even a minimum of $390,000 to start and an annual compliance cost of around $450,000, not many local vaping businesses will be able to sustain that kind of upkeeping – except those major vaping conglomerates which shouldn’t even be considered in the first place seeing as vaping is a very locally focused business and it should be kept that way.
The three plaintiffs in the law suit are Montgomery’s Cyclops Vapor 2, Operation Vapor and Tiger Vapor (which is the only one located in Opelika). The main argument of the law suit revolve around the issue that none of the vaping products sold by all three plaintiffs include any form of tobacco – which again, brings back the reasoning as stated above. Now, this isn’t the only law suit of its kind with four other law suits of a similar nature have been filed throughout the United States with one being in California whilst the other three are based in Washington D.C.
“We know that Alabamians will understand the impact this (FDA regulation) is going to have for them. 150 small businesses will have to close their doors. A thousand Alabamians would lose good paying jobs.”
When compared to the other law suits that are hitting the United States, Alabama appears to be the only law suit which demands a trial by jury as compared to the more administrative court proceedings without a jury.
It is important to make note that the vape shop business owners who are involved in the law suit made a clear and strong emphasis that there was no hard feelings about all FDA regulations as those that concerned them were only regulations which would cripple the vaping business and possibly the industry as a whole.