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What Vaper's need to know about August 8th

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As of August 8, 2016, the Food & Drug Administration (FDA) will consider vapor products to be “tobacco products” under the Family Smoking Prevention and Tobacco Control Act (the Tobacco Control Act). What does this mean for vaping and the development of new reduced harm products in the United States going forward?

The bad news is that August 8th of this year marks the beginning of a two-year countdown to FDA prohibition of 99.9%+ of vapor products on the market. If we do not succeed in changing the FDA’s arbitrary predicate date of February 15, 2007, the vapor industry will shrink to almost nothing beginning August 8, 2018.

Even so, there is reason for optimism — advocates are actively working daily to convince Congress and/or the courts that the 2007 predicate date cannot be allowed to stand.

Under almost any outcome of these efforts, regulation of vapor products will occur. In order for your favorite manufacturer, distributor, retailer, etc. to keep their doors open until August of 2018 (and hopefully far beyond), there are a number of rules and regulations that they must follow. These rules are coming into effect in a staggered fashion over the next two to three years. This article seeks to provide a brief overview of what is required of those in the industry beginning on August 8, 2016 (but does not outline other equally important deadlines that follow August 8th).

Take Action to Stop the FDA’s Vaping Ban at August8th.org!

No new products

In order for a vapor product to be able to be sold after August 8, 2016, it must be commercially marketed as of that date (see prior FDA guidance on the subject). This means that after August 8, manufacturers are not only prohibited from releasing new flavors, devices, coils, etc., but they also may not make virtually any modifications to existing products. It is critical that manufacturers (including single shop retailer-manufacturers) understand that any variation of the nicotine level, bottle size, flavor amount, ingredient type, etc. in a current product (i.e., one being marketed on August 8, 2016) will result in a “new” product that will be illegal to sell without preapproval from the FDA.

No sales to those under 18

This is already the law in 48 states, but the FDA regulation adds a new requirement — anyone appearing under the age of 27 must present photo identification.

Age verification for online sales

In both the final rule and in webinars, the FDA has announced its intention to conduct youth access checks on not just brick-and-mortar retailers, but also online retailers. It is critical that retailers only sell online if they have integrated into their website an adequate age verification platform. (Simply clicking a box is not acceptable.)

No free samples

Another integral part of the vape shop experience — especially for smokers looking for a product to switch to — is trying out different flavors and nicotine levels. Starting August 8, 2016, this will no longer be allowed unless the customer is charged a fee. This rule applies even if the environment is age-restricted. Additionally, FDA appears to believe that even free sampling of zero-nicotine products is not allowed.