A Sonora vape shop owner is joining others across the United States to take on the federal government’s 2016 rule that regulates electronic cigarettes and nicotine-infused liquids as tobacco products.
Mountain Vapors at 83 S. Stewart St. Suite 206 is one of four vape shops named as plaintiffs in a challenge filed in the U.S. District Court for the District of Columbia to the Food and Drug Administration’s “deeming rule” for such products that took effect on Aug. 8, 2016.
“The majority of us (in the vaping industry) have always said we need reasonable regulations, but we don’t fit the FDA deeming rule,” said Steve Green, owner of Mountain Vapors. “It only fits for tobacco.”
The lawsuit and two others filed in federal courts in Minnesota and Texas were announced Tuesday morning by the Pacific Legal Foundation, a conservative legal group based in Sacramento that’s representing all of the vape shop owners for free.
Green said he became involved with the lawsuit through a friend who’s a vaping advocate and suggested that he reach out to the foundation several months ago.
“They don’t want our money,” he said of the foundation. “They just think what the government has done is wrong.”
Despite not having tobacco in them, products such as electronic cigarettes, e-liquids and their associated accessories are now subject to the Tobacco Control Act as a result of the 2016 rule.
The law, among other regulatory hurdles, requires businesses to get approval from the FDA before a product can go to market, bans retailers from offering custom flavors and services they used to provide, and prohibits them from advertising or discussing potential benefits from vaping.
Green, 54, said he can longer talk to customers about how he smoked more than two packs of cigarettes per day for three decades before discovering vaping about seven years ago.
Prior to vaping, Green struggled to breathe while walking up a set of stairs and his doctor told him it was only a matter of time before he was on an oxygen tank for emphysema.
He said he returned to the same doctor five years after quitting traditional cigarettes for electronic ones and was told his lungs were in perfect shape and to keep up whatever he was doing.
“I’m not making any medical claims,” Green said while holding up a vapor pen. “Is this totally safe? I don’t know, couldn’t tell you, but I don’t claim it to be.”
Green did, however, reference an August 2015 study that determined electronic cigarettes to be about 95 percent less harmful than traditional smoking. The study’s author, Public Health England, is an executive agency of the United Kingdom’s Department of Health, which oversees that country’s nationalized health care system.
Mitch Zeller, director for the FDA’s Center for Tobacco Products, penned a blog post in 2016 arguing in favor of a rule on vaping products that stated electronic cigarette use by high school students skyrocketed from 1.5 percent in 2011 to 16 percent in 2015, an increase of over 900 percent.
In 2014, former Tuolumne County Health Officer Dr. Todd Stolp blamed part of the increase in vaping by youth on marketing campaigns designed to glamorize the use of the products, such as one that prominently featured former Playboy model Jenny McCarthy.
Green said nobody in the industry wants to hook children on electronic cigarettes.
About 85 percent of Green’s customers are people trying to quit smoking, including medical professionals, lawyers and law enforcement. He doesn’t know why anyone would want to vape if they weren’t previously smokers.
Before opening the store about four years ago, Green was a construction contractor and helped build the High Country Sports Arena in East Sonora for the county’s youth. He still serves on the nonprofit arena’s board, currently as vice president.
“I’m pretty youth-oriented,” Green said.
Green fears the new regulations could ultimately put him and others out of business in the coming years.
As a result of the rule, Green can no longer help build vaping rigs for people and instead has to direct them to tutorials on Youtube. He said putting one together the wrong way could result in it exploding while being used.
“People are going to get hurt,” he said.
In addition, the product’s Green sells are also now subject to the state’s new tobacco tax approved by California voters in 2016 as Proposition 56. He also can no longer sell any products, including cotton swabs and batteries, to anyone under 21 due to the state raising the minimum age for purchasing and using tobacco products in June 2016.
Businesses that produce the flavored liquids used in vaping devices are facing problems as well.
Green said many of the liquid brands he sells are produced by small companies that will not be able to afford the new requirements to keep their products on the market.
For example, a single flavor can come in five different levels of nicotine and each level could cost as much as $1.5 million to go through the FDA’s premarket application process. Scott Gottlieb, the new FDA commissioner appointed by President Donald Trump, delayed the deadline for premarket applications from 2018 to 2022.
“By then, 99 percent of our industry could be gone,” Green said of the 2022 deadline.
The lawsuit claims that the FDA rule is unconstitutional because it was issued by the agency’s Associate Commissioner of Policy at the time as opposed to an officer appointed by the president.
It also argues that the rule impedes on the business owners’ First Amendment right to freedom of speech by restricting them from talking about the potential benefits of the products they sell.
“These regulations don’t just harm small businesses and consumers, they undermine constitutional safeguards for individual liberty,” Thomas Berry, an attorney for the Pacific Legal Foundation, stated in a press release.
Contact Alex MacLean at firstname.lastname@example.org or (209) 588-4530.