Keeping up with vaping laws is an ongoing struggle. Recently we’ve seen changes to the PACT Act that will additional restrictions on vape sellers. Add the fact that regulations and approved or restricted products continue to change state to state over time and it’s no surprise that confusion and misinformation are pervading the vaping market.
Vaping laws are changing even more rapidly today, especially in light of the Premarket Tobacco Application (PMTA) deadline being moved up to September 9th, 2020 – nearly two years earlier than originally planned. Promoting the future of the industry demands the vaping public stay informed on current vaping laws and their varied impacts across the US. As of December 2020, here are some notable details.
Vaping laws are affected by how state laws define products.
It’s important to understand how e-cigarettes and vaping products are defined by state laws because they affect everyone from brand manufacturers to shops and their customers. With the exception of American Samoa, every state has at least one law that defines e-cigarettes. Many also legally define them as “tobacco products,” increasing restrictions around product sales and displays.
Vaping laws include taxation.
The number of states taxing vape products has grown over recent years since they were first applied in 2010 in Minnesota. Many states have vaping laws that also include a special tax. For instance, California’s vape products fit under “other tobacco products” with a special tax rate of near 57% of the wholesale price. In Massachusetts, the special tax rate is 75%. Still, many states have yet to tax vaping products, such as Arizona, Florida, and Texas.
Vaping laws affect product packaging.
Vaping laws around packaging date back to 2014, with the latest introduced in Idaho last July. However, over 40% of American states have yet to impose vaping laws around packaging.
The majority of package-related vaping laws deal with child-resistance. Other stipulations to watch for include restrictions around opening, repackaging, and/or selling products in quantities smaller than the manufacturer’s original packaging. Labeling is also a big factor. It typically includes warnings around nicotine effects; keeping vape products away from children, minors and/or “open systems”; as well as disclosing nicotine amounts.
Vaping laws help restrict youth access.
Every state enforces at least one vaping law restricting youth access. This is vitally important because with lack of oversight in some retail locations, and the aggressive marketing of candy-like flavors and packaging, youth are inevitably drawn to these products. The minimum legal purchase age varies from 18 to 19 or 21. Things get tricky in some over-21 states where certain exceptions apply, particularly to allow those 18 and over with U.S. or state military ID cards to purchase products.
In many cases, vaping laws also protect youth through practices such as prohibiting product displays in spaces accessed by those under 21. They may also require age verification for delivery sales or prohibit sales and advertising on higher learning campuses. Retail employees must be at least 17, and those under 21 can only sell products in the presence of a supervisor aged 21 or over.
Vaping laws in most states require retailers to obtain a license to sell.
This includes over-the-counter, vending machine, and online sales, and it is centered on vape liquids, not the actual devices. The majority of states have vaping laws that require retailers to obtain a license to sell vaping liquid. This law goes back to Kansas in 2012 and extended more recently to Kentucky in August of 2020.
Vaping laws mandate smoke-free restrictions.
Various smoke-free restrictions help curb youth exposure. These may include designated areas in public spaces, places where children are indoors, or higher education campuses.
The PMTA affects the entire vaping industry
Moving up the PMTA process is affecting the industry and its vaping laws. Products not on the market prior to August 8th, 2016 were required to be filed in a PMTA by September 9th, 2020. Those that missed this deadline are now illegal to be sold on the US market, meaning 99 per cent of the vaping industry vanished overnight. Numerous favorite flavors and devices are no longer available, with choices limited to larger brands. Sadly, many family-owned businesses have had to close up.
The future of the vaping market requires decision making abilities that eliminate the fear of fines, unsafe products or inventory-related income losses. Your health and the future of the vaping industry depend on all of us doing our due diligence to stay informed around vaping laws. As we await the approval process to wrap in September 2021, FDA acceptance letters continue to indicate which products are eligible for continued sales. However, as of March 2021, we have yet to see an FDA release list of PMTA applications. This holds back the industry and people’s access to vitally important information.
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