FDA vaping regulations: an updated timeline and FAQ

Update: an FAQ on changes to the deeming rule, and a calendar of remaining deadlines

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November-8th-2022

On July 28, when FDA commissioner Scott Gottlieb announced a four-year delay for the final deadline to submit premarket tobacco applications (PMTA’s) for vapor products (and other newly deemed “tobacco” products), it created some confusion among vapers and vape vendors.

Deeming rule changes - FAQ

  • Are the remaining deeming deadlines all postponed four years?

    No. Only the final PMTA deadline has been delayed. The original date was August 8, 2018.

    In May of this year, the FDA announced a 90-day delay of the remaining deadlines to “allow new leadership at the FDA and the Department of Health and Human Services additional time to more fully consider issues raised by the final rule that are now the subject of multiple lawsuits in federal court.” That moved the final deadline to November 8, 2018.

    Then on July 28, Commissioner Gottlieb announced major changes to the agency’s plans for regulating tobacco and vapor products. Part of the changes was a four-year extension for manufacturers to submit PMTA’s for products available before August 8, 2016.

    All other existing deadlines remain as they were before the July 28 announcement, including all parts of the rule that have already taken effect. (The FDA has a document that details all compliance dates of the deeming rule. We have taken all the dates in this article from that document.)

  • Can a new product now be introduced without submitting a PMTA?

    No. The delay for PMTA submission allows products that were already available before August 8, 2016 to remain on the market until August 8, 2022. Any products introduced after August 8, 2016 must have a marketing order from the FDA before sale. That means all new products require a PMTA to be filed and approved.

  • Has the February 15, 2007 “predicate date” changed? Do we still need to support HR 1136?

    No. That date will probably only be changed by Congress. Vapers should not forget about HR 1136, the most-recent Cole-Bishop bill. This legislation would change the predicate date from 2007 to August 8, 2016, which would allow all current products to remain on the market without a PMTA.

    Many vapers assume that the new four-year delay for PMTA submission will solve out problems, but it won’t. Unless the FDA changes the entire playing field for tobacco product approval, we still need Congress to eliminate this concern by amending the Tobacco Control Act (which HR 1136 does).

    As of Sept. 4, HR 1136 has 85 co-sponsors. It’s going to need a lot more committed support to make headway in this confused Congress. Please continue to ask your U.S. House member to support HR 1136. Visiting August8th.org is so simple and fast, there’s no excuse not to do it right now!

  • Is the FDA changing the requirements for a PMTA?

    Nothing has changed yet. But the Gottlieb announcement included the promise that the agency would make some big changes.

    According to the agency’s July 28 press release, “the FDA plans to issue foundational rules to make the product review process more efficient, predictable, and transparent for manufacturers, while upholding the agency’s public health mission.

    “Among other things, the FDA intends to issue regulations outlining what information the agency expects to be included in Premarket Tobacco Applications (PMTAs), Modified Risk Tobacco Product (MRTP) applications and reports to demonstrate Substantial Equivalence (SE). The FDA also plans to finalize guidance on how it intends to review PMTAs for ENDS.”

  • Is the FDA going to ban flavors?

    Not immediately, but that could happen. The FDA already has the authority to ban or restrict the availability of flavors in all deemed products. In fact, they originally planned to ban flavors, but were prevented after review by the White House Office of Management and Budget (OMB).

    In his July 28 announcement, Dr. Gottlieb said the agency would look “at the role of kid-appealing flavors, because kids shouldn’t be using any of these products. So going forward I am asking the Center for Tobacco Products to develop an Advance Notice of Proposed Rulemaking to address the issue of flavored tobacco products and kids.”

    That means that there will be a long process, including deliberations within the agency, a call for public comments, further deliberations, and finally a rule issued on flavors in vaping products. Vapers need to be involved in this process in a much more serious and organized way than we were during the 2014 preliminary deeming announcement. In fact, we should all be preparing our comments on why flavors are important now. Let’s be ready this time!

  • Is the FDA planning on reducing nicotine content in vapor products?

    The FDA says no. The most-discussed part of Gottlieb’s announcement — for everyone but vapers, that is — was his suggestion that the FDA would reduce the nicotine in cigarettes to eliminate their “addictive potential.”

    “Armed with the recognition of the risk continuum, and the reality that all roads lead back to cigarettes as the primary cause of the current problem, we need to envision a world where cigarettes lose their addictive potential through reduced nicotine levels,” said Commissioner Gottlieb. “And a world where less harmful alternative forms, efficiently delivering satisfying levels of nicotine, are available for those adults who need or want them.”

    That seems to indicate that vapor products with “satisfying levels” of nicotine will still be around. BUT…who knows what the FDA will decide to do if and when they are able to reduce the nicotine in cigarettes? Having fulfilled the fantasy of many tobacco control zealots, who can say they won’t continue and try to create a nicotine-free world?

    However, the process of showing that “Very Low Nicotine Cigarettes” (VLNC’s) can be effective in reducing smoking, and that they won’t simply create the biggest black market for any product ever, will be a long and tedious one for the agency. So if the FDA ever gets around to trying to reduce or eliminate nicotine in vapes, it will be many years down the road.

Deeming timeline

Deeming-timeline

September 30, 2017

  • Establishments engaged in the manufacture, preparation, compounding, or processing of a tobacco product must register with the FDA. (Future regulation will require registration of foreign establishments.)
  • Provide the FDA a list of all products. The list must include all labeling and advertising. Product listings are updated every June and December

November 8, 2017

  • Submit ingredient listings for all products.(Large-scale manufacturers* only. Small-scale manufacturers will have until May 8, 2018, to submit ingredient listings.)
  • Small-scale manufacturers must provide “Tobacco Health Documents” notification (if applicable). Large-scale manufacturers were required to submit these by Feb. 8, 2017. Note that this is an arcane requirement that will probably apply to very few vapor products manufacturers.

    *FDA considers “small-scale tobacco product manufacturers” to be manufacturers of any regulated tobacco product with 150 or fewer employees, and annual total revenues of $5 million or less. All others are considered large-scale manufacturers

  • “All required label and labeling statements must be prominent and in such terms that render it likely to be read and understood”
  • Prohibition on the manufacture of products that contain “light,” “low,” “mild,” or other similar descriptors in the label, labeling, or advertising of such products without a modified risk tobacco product order in effect

May 8, 2018

  • Submit ingredient listings for all products.(Small-scale manufacturers only. Large-scale manufacturers were required to submit ingredient listings by Nov. 8, 2017.)

August 10, 2018

  • Product packages and ads must contain the addictiveness warning statement “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” The warning must follow size and format requirements. Distribution of products without the required warning must end by September 10, 2018)
  • Product packages and ads of covered tobacco products that do not contain nicotine may bear an alternative warning statement: “This product is made from tobacco.” (Yes, even though e-liquid without nicotine positively does not contain tobacco.) Manufacturers must submit to FDA a self-certification
  • Labels must include the following information:
    • The name and place of business
    • Quantity of the contents
    • Percentage of domestic and foreign- grown tobacco
    • The statement: “Sale only allowed in the United States” on labels, packaging, and shipping containers of tobacco products

November 8, 2019

  • Submit lists of harmful and potentially harmful constituents (HPHC’s)

August 8, 2022

  • PMTA’s or SE reports due for all products that were on the market August 8, 2016 or before.

    Commissioner Gottlieb announced on July 28 that the agency would amend the one-year limit for products to remain on the market while submitted PMTA’s are reviewed. Products will be allowed to be sold until the FDA reaches a decision to approve or deny the application.

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Jim McDonald
I spend most of my time studying the regulatory, legislative and scientific challenges to vaping, advocating for our right to exist, and talking with others who do the same. Consider me a source for information, and feel free to agree or disagree with anything I say. I love good coffee and sweet Michigan cherries. My childhood hero was Gordie Howe.
  • Benjamin Ipsen

    I’m not a big brother conspiracy theorists but isnt this clearly over stepping bounds federal government made by the people for the people so why is the feds culling us like live stock

  • Penny Mcaninch

    They have very clearly gone way to far on This!