November 2, 2018

Los Angeles Takes Legal Aim at Vape Companies

Los Angeles City Attorney Mike Feuer has filed suit against three vaping retailers, charging that they sell products online without proper age verification. He has also accused them of marketing to underage customers through social media, and selling products not approved by the FDA.

The L.A. city attorney is just the latest ambitious prosecutor to take aim at the vaping industry. Earlier this year, Massachusetts Attorney General Maura Healey announced an investigation into JUUL Labs, the maker of the most popular vaping device on the U.S. market. Following Healey’s lead, the North Carolina AG has also begun an investigation.

Feuer is seeking injunctions against NEwhere Inc and its subsidiary VapeCo, and also KandyPens Inc. NEwhere operates three websites selling vapor products, according to Feuer: newhere.com, madhatterjuice.com, and vape-co.com. KandyPens also sells from its own website.

It’s unclear what the city attorney means when he says the products are “unapproved” by the FDA.

Feuer alleges that city employees were able to make online purchases “on multiple occasions” from the companies “while posing as teen customers using fake email accounts and a prepaid gift card.” The legal age for purchasing tobacco products (which includes vapes) in California is 21.

“Underage vaping is an emerging public health epidemic, and luring kids to use dangerous and addictive vaping products, as we allege here, has got to stop,” said Feuer in a press release. “In fact, kids shouldn’t have access to these products at all. The lawsuits we filed today send a strong message that if you put children at risk for the sake of profit, you’ll face serious consequences.”

Feuer says that “most, if not all” of the products on the NEwhere websites are being sold without FDA approval. All of NEwhere’s websites are currently offline, but an archived version of the NEwhere site (captured in August) shows typical vaping products that were likely available for sale before Aug. 8, 2016. It’s unclear what the city attorney means when he says the products are “unapproved” by the FDA.

Mad Hatter/NEwhere was cited by the FDA in May for selling e-liquid in packaging that resembled a children’s apple juice container. The company notified the FDA that the offending product was no longer being sold. The FDA did not accuse them of selling products introduced after the cutoff for deemed products to be sold without an approved PMTA.

The L.A. city attorney is just the latest ambitious prosecutor to take aim at the vaping industry.

It’s not clear if or why the Los Angeles city attorney’s office is investigating violations of the FDA prohibition on selling products brought to market after Aug. 8, 2016.

Feuer also contends that KandyPens is selling products not “approved” by the FDA. He further accuses KandyPens of not posting the FDA-required nicotine warning on its products or advertising, including social media posts. However, KandyPens doesn’t sell any products that are prefilled with e-liquid.

In fact, though KandyPens sells some devices that can be used for vaping e-liquid, it primarily offers products used for vaping cannabis concentrates and flower. Cannabis is legal in California for adults over 21, and is not regulated by the FDA. The company makes the claim that all of its products are intended “for aromatherapy purposes only.”

Feuer is asking the court to grant injunctions prohibiting the companies from selling online without appropriate age verification, selling deemed products with FDA approval, and “targeting youth” in their marketing.

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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