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April 29, 2019

An Obscure Safety Rule Could Shut Down the Vaping Industry

With the attention of FDA regulators focused squarely on the supposed teen vaping epidemic and pod vapes like JUUL, a new action by another federal agency threatens to shut down vape shops and e-liquid manufacturers — and it may already be happening.

The Consumer Product Safety Commission (CPSC) has quietly amended guidelines for e-liquid containers, and the changes could mean that millions of bottles of e-juice on vape shop shelves and in warehouses will be declared non-compliant and subject to recall or even destruction.

The “restricted flow requirement” states that an opened bottle, when inverted and squeezed continuously for five seconds by a five-year-old child, must dispense no more than two milliliters of e-liquid. Obviously, no glass bottle could pass such a test, since the contents would flow out freely when the opened bottle is tipped upside down.

On Feb. 20, recently appointed Republican CPSC Commissioner Peter Feldman issued a warning via Twitter (to his 97 followers): non-compliant e-liquid would be subject to an immediate stop-sale order.

According to attorney Azim Chowdhury and two colleagues at Washington, D.C. regulatory law firm Keller Heckman, that tweet was the first indication that the CPSC might apply the restricted flow requirement to e-liquid containers. On the same day, the CPSC posted a letter explaining that the agency intended to issue guidance in March for restricted flow testing parameters. Publication of the letter on the CPSC’s e-liquid business guidance page was apparently the only outreach to manufacturers the CPSC considered necessary.

The rule can be found in section 1700.15 of the Poison Prevention Packaging Act. Incredibly, no grace period for manufacturers was given. Rather, enforcement began soon after a testing protocol for bottles was announced on March 8. The testing process is complicated, and will probably require specialized third-party labs, according to Choudhury.

Soon after the testing protocol was established, Feldman and another Republican CPSC commissioner introduced an amendment to the agency’s annual budget request, asking for additional funds to “support identification and removal of hazardous products that do not comply with the special packaging requirements” in the CPSC regulations.

The first vaping law passed during the Obama administration was the Child Nicotine Poison Prevention Act, an amendment to the Poison Packaging Prevention Act that mandates e-liquid be sold in child-resistant containers. The law only applies to bottled e-liquid, and not to non-refillable pods and cartridges.

E-liquid sellers could be caught in a terrible Catch-22: comply with one federal rule and be out of compliance with another.

Most e-liquid manufacturers were already using child-resistant bottles when the law was signed by President Obama in early 2016, and there had been no objection to the new standards by industry trade groups. The law went into effect on July 25, 2016, and for nearly three years millions of bottles of e-liquid have been sold in glass and plastic bottles that may now be defined as non-compliant with the restricted flow rule.

All bottles currently being used will have to be tested for restricted flow, and new General Certificates of Conformity (GCC) will have to be issued by manufacturers and kept on file by retailers. Until that happens, vape shops and online vendors may be in for a rough ride. According to the attorneys at Keller Heckman, CPSC Acting Chair Ann Marie Buerkle told a Congressional subcommittee that the agency has created an enforcement plan that will include inspections of vape shops and online retailers.

That House subcommittee is chaired by Rep. Frank Pallone, the same New Jersey Democrat that recently introduced HR 2339, the Reversing the Youth Tobacco Epidemic Act. If passed, the Pallone bill would destroy the independent vaping industry, by banning flavors and online sales, and forcing manufacturers to pay $100 million in annual FDA user fees.

Pallone, a longtime foe of vaping, specifically challenged Buerkle on the flow restriction rule, which he illustrated by holding up a bottle of e-liquid and noting that “it can simply be dumped out in an amount that can easily kill a child.”

Stories about CPSC inspections are already circulating among vendors. In at least one case, a vape shop owner says that a CPSC inspector demanded that non-compliant e-liquids be dumped on the spot. But as bad as the flow restriction requirement is by itself, the rule may create an even bigger challenge for the industry from its usual regulatory nemesis, the FDA.

The FDA Deeming Rule prohibits manufacturers from changing the packaging of a product (except labels) introduced before Aug. 8, 2016. Any alteration to the product — including new bottles — would make a deemed product non-compliant and subject to the requirement for an approved premarket tobacco application before it can be legally sold.

As every vape shop and e-liquid manufacturer knows by now, a PMTA could cost over $1 million, and there is no guarantee it will be accepted and approved by the FDA. That’s why not a single application has yet been submitted for any vaping product, nearly three years after the Deeming Rule was finalized.

The vaping product law experts at Keller Heckman think it’s “unlikely the Agency would discourage CPSC from enforcing its own laws and requiring manufacturers to implement flow restrictors.” But that’s not a guarantee.

E-liquid sellers could be caught in a terrible Catch-22: comply with one federal rule and be out of compliance with another. If both agencies enforce their rules, the entire independent industry could be flattened in months. And if Rep. Pallone and the CPSC are concerned that e-liquids pose a safety threat, wait until they see the nightmare a couple million new home e-liquid mixers will create.

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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James Mancuso
James Mancuso
2 years ago

If they have child proof lids why do we need flow restrictions? Every single day our world gets stupider.

Benjamin
Benjamin
2 years ago

I don’t understand how household cleaners are getting around this rule? How about furniture polish? There are a significant number of “poison” as defined under https://www.law.cornell.edu/cfr/text/16/1700.14 that would be considered out of compliance.

Tony Glock
Tony Glock
2 years ago

Wow Holy shit! It just never seems to ever end! They will do anything they can to kill vaping and protect the billions and billions of dollars made from big pharma and big tobacco. I can name quite a few things deadlier than eliquid in which the containers dont have “flow restrictors”.

Pam Stuck
Pam Stuck
2 years ago

My guess is the tobacco industry wants to keep people addicted to cigarettes.
I was only able to quit with the help of vaping.

Darla D Martinez
Darla D Martinez
2 years ago
Reply to  Pam Stuck

Me too, Pam. I smoked for 30 years and was able to quit when I started vaping. I am at 0 nicotine. Still enjoy vaping.

DDR
DDR
2 years ago

Same. Stopped smoking after 30 years. I’m at 0mg NICOTINE now & still enjoy Vaping. Vaping helps people STOP SMOKING. It’s a damn shame these politicians who are getting their pockets lined by big tobacco & big pharma can’t see Vaping actually HELPS the poor constitutants by helping them STOP SMOKING. Keeps down Healthcare costs amongst other things.
It’s a sad day when they won’t listen to those hundreds of thousands who’ve been helped by stopping smoking.

Maddy
Maddy
2 years ago
Reply to  Jim McDonald

If you read the article, it’s the Democrats.

joshua
joshua
2 years ago
Reply to  Jim McDonald

nonsense. lets not put everything in donald trumps lap. there is so much more at work with silly things like this. never gonna happen

joshua
joshua
2 years ago
Reply to  Jim McDonald

i think you misunderstand what Im saying, possibly I was too vague. my point is that everybody loves to point a finger and all that does is put the blame on one person. that just is not the case. the action of placing blame doeant do any good. i didnt vote for trump. in fact if people still believe that even the president whoever it may be has omnipotent power then they should really rethink that idea. im sure there are plenty of people with their hand in this. not to mention nothing is going to happen anyway. the vaping… Read more »

joshua
joshua
2 years ago
Reply to  Jim McDonald

in your opinion what is a good solution?

robert innes
robert innes
2 years ago
Reply to  Jim McDonald

In the UK all bottles are plastic with a drip nozzle. They are stiff enough that no child could get 2 ml out.

Erik Hall
Erik Hall
2 years ago
Reply to  Jim McDonald

You can not blame this on trump. Do you realize how stupid you sound right now.

James Mancuso
James Mancuso
2 years ago
Reply to  Jim McDonald

It doesn’t matter who appointed who. It is all about the money. Make people sick then treat (not cure) the sickness. If you take the time to follow the money you would know this. If you think any of these groups CPSC, FDA, American Heart Association, etc is not corrupt then you are just a blind sheep like most Americans. Our government doesn’t care about our health period! They just want money, money, money, and if it kills most citizens then oh well that many less people.

James Mancuso
James Mancuso
2 years ago
Reply to  Jim McDonald

Yes I know that you wrote the article. I am smart enough to read and retain information. You talk about how cpsc it is following Trump adminstration policy yet that is not really right. The policies my be approved by the administration but they usually formed and sometimes even drafted by corporations. We no longer live in the USA but the Corporate States of America.

Doug
Doug
2 years ago
Reply to  Jim McDonald

I would like more information on these Trump-appointed bureaucrats…

Letitia
Letitia
2 years ago

Twits. If they would just come up with reasonable regulations their tax base would keep abreast of what they will lose in tobacco sales. If they legalize weed they will need to do some serious backpedaling concerning vaping.

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