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July 15, 2020

Puff Bar: A Preview of the Post-PMTA Vaping Industry

An announcement yesterday on a website claiming to represent the sellers of the disposable vape Puff Bar said that sales had been suspended. Later the wording was changed to “ceased until further notice”—not that there’s much of a difference.

“Puff Bar has ceased all online sales & distribution in the U.S. until further notice,” the site says today.

The post followed a July 9 story on the website FairWarning that made a stab at untangling the confusing ownership of the brand, which has inherited much of the ire tobacco control groups once directed solely at JUUL. There are multiple business entities that claim to own Puff Bar or have filed trademarks for the brand. At least one of these groups has been sued by a public interest law firm in Boston, and one has itself sued various other business concerns for distributing “fake” Puff Bar products.

What exactly is a fake Puff Bar? Good question. While vape product designers and manufacturers have always faced the threat of Chinese factories producing clones of their devices, in this case it’s hard to tell if the brand chicken came before the production egg. The better question is if there has ever been a legitimate Puff Bar.

For as long as Puff Bar has been around, Chinese commerce sites like Alibaba have featured Puff Bars being sold wholesale from multiple manufacturers. Essentially, anyone with a few thousand dollars and some time could turn a shipment of these products into a business. The devices were (and are) usually sold without liquid included. All an enterprising importer has to do is fill them up and push them out the door.

So anyone can make Puff Bars and sell them, but getting rich doing it is a matter of successful distribution. It may be that the people who claim ownership of Puff Bar have been the most skilled at getting the product into stores and onto major vendor websites, and thereby have some claim to being kings of the Puff Bar empire. Or maybe the concept really is theirs, and they’ve been copied and cloned by everyone else selling Puff Bars.

However, it seems likely that a large number of the devices being sold are coming from multiple importers. A quick Alibaba search shows dozens of Chinese factories producing and wholesaling the familiar rectangular devices (and several non-rectangular variations). There would be no need for multiple manufacturers to provide one supply chain—and certainly no need to advertise it. No, there’s clearly a large and diverse Puff Bar economy out there.

Puff Bars—like all vaping products that were not on the market before Aug. 8, 2016—are illegal to sell, whether you’re the bonafide owner of the brand or not. No product introduced after that date can be legally brought to market without first having an approved Premarket Tobacco Application (PMTA) from the FDA. Since no PMTAs for vape products have been approved yet, Puff Bar is de facto illegal.

Of course, that fact is widely ignored, not just by the distributors and sellers of Puff Bar and similar products, but by the tobacco control groups (and their enablers in the news media) who claim a “loophole” in FDA guidance allows disposable products like Puff Bar to remain in business. The silly loophole myth was concocted by Campaign for Tobacco-Free Kids to maintain anti-vaping media momentum after JUUL was effectively neutered by the FDA (and the company’s own mistakes).

In reality, the FDA exempted flavored disposable products in its guidance as a concession to the first-generation vape manufacturers like NJOY (and many less well-known brands) that have been selling disposable flavored cigalikes for a decade. Those products have never been popular among teenagers, and there was simply no reason for the FDA to include them in the ban on flavored products.

The reason the FDA has not cracked down on the producers of Puff Bar and similar non-compliant manufacturers is probably that the agency simply can’t figure out who they are. If the FDA were to issue a warning letter, or two or three warning letters, to Puff Bar enterprises, and the products continued to be sold in every corner store, it would serve only to highlight the FDA’s regulatory impotence.

In fact, Puff Bar provides a glimpse of what the vaping industry will become when all products without PMTAs become illegal on Sept. 9. The future of vaping will be a landscape of constantly shifting gray and black market products, with the FDA chasing after shadowy companies only to watch them disappear and reappear like sidewinders in the desert sand. In an era of internet commerce, cheap intercontinental shipping, and cryptocurrency, a plodding regulatory agency like the FDA has no chance of banning products that people want.

Parents Against Vaping e-cigarettes (PAVe), which has been running a letter-writing campaign demanding the FDA take action against Puff Bar, reacted with jubilation to the announcement. The prohibitionist moms sent a message to their mailing list expressing cautious optimism about the “exciting and unexpected news.”

But despite the website announcement, the Puff Bar saga has almost certainly not ended. Even if the owners of the website are the same people responsible for the online and c-store distribution model that has worked so well for Puff Bar, and even if that group has ceased selling products, Puff Bars will remain available as long as people want them, Chinese factories are willing to make them, and a few shady entrepreneurs exist in America.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy
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