Taking a Look at The Smoke Free Alternatives Trade Association

Taking a Look at The Smoke Free Alternatives
Trade Association

By Cynthia Cabrera, SFATA Executive Director

 

The e-cig industry is a disruptor, turning the tobacco industry on its head,
empowering consumers and creating a new multi-billion dollar industry. But, in the
long run who will be able to reap the windfall brought on by this nascent industry?

The World Health Organization, the Center for Disease Control and the Surgeon
General have for many years agreed that tobacco use is harmful, and in particular, that
smoking tobacco cigarettes is very harmful in various ways. Despite the well-known dangers
of cigarette smoking and the public policy arguments in favor of reducing tobacco consumption such as lower health care costs, efforts to reduce tobacco consumption have not been as effective as one would expect over the past several decades. Reducing tobacco use is a significant benefit that has the potential to change our society for the better and an objective that the FDA and anti-smoking groups across the globe have been trying to achieve for decades.

I believe a major problem right now is that FDA and anti smoking groups seem to view vapers and the act of vaping as indistinguishable from smokers and smoking when the two are in reality very different things. Given the stigma smoking has earned, and the harm it causes, there is a strong push by FDA, various Attorney Generals, and legislators at the federal, state and local levels. These groups and individuals confuse smoking with vaping and attempt to regulate vaporizers in the exact same manner as cigarettes. This doesn’t make sense, and would be a huge mistake on many levels as it would unfairly stifle the industry, deny millions of adults an alternative to tobacco and stifle one of the most prolific segments of our economy.  That’s bad news for an industry that’s largely comprised of small companies and entrepreneurially-minded individuals

The Smoke Free Alternatives Trade Association (SFATA) exists in part to help educate smaller and mid-sized companies as to what we consider to be acceptable advertising, manufacturing and marketing protocols and to serve as a powerful voice for them in our nation’s capital as well as in their own backyards where many of them are being unfairly treated as though they were tobacco companies. 

At SFATA we are constantly engaging and educating regulatory officials and legislators at the federal, state and local level on behalf of our members. Our membership grows each month as more companies look to collaborate to achieve common goals and to obtain guidance and support as the industry expands and become more complicated.

To date, SFATA is the largest e-cig trade association and is comprised of sophisticated companies in the industry who are looking to work together to help protect common interests.  Business owners and consumers of e-cigs and e-cig accessories can help in a variety of ways:

Become a member of SFATA. While different companies may not always agree on every initiative, as some affect others differently in the marketplace, its important to have an industry that speaks with a unified voice on the issues that everyone agrees are most important. SFATA is committed to engaging with government agencies and elected officials in an effective manner—to communicate industry messages that smaller and mid-size businesses would not normally able to convey. We employ FDA experts, as well as attorneys and staff who specialize in the areas that affect our industry and are able to be of the most help as they have a profound understanding of the regulatory, legal and business issues that are unique to the vaping community. 
The way consumers and business owners talk about vaping needs to be different.

As a business owner, your message and your right to communicate it, is different than that of a consumer and that’s an important distinction. A consumer can talk about his or her vaping experience with impunity and in ways businesses cannot.

A consumer can advocate about what they see as any benefit vaporizers provide them with. Perhaps the availability of flavors keeps that consumer interested in using his or her personal vaporizing device rather than tobacco cigarettes? Perhaps he or she has cut down use of tobacco cigarettes and have saved money? Perhaps he or she feels better having switched to vaping from smoking. There are many compelling, important and amazing stories that vapers share about how vaping has changed their lives for the better. It’s important that consumers and consumer advocacy groups make those statements so that elected officials, government agencies and others unfamiliar with vaping understand consumers’ point of view. 

Business owners have a responsibility to sell and advertise products as intended and governed by law. While it is fine for consumers to share their personal stories, business should never make or endorse health or smoking cessation claims. Doing so could, arguably, subject such a business to being regulated by the FDA as a tobacco product under the current state of the law.  

Instead, craft your message as a business owner and focus on the economic impact this product has given you. Focus on the jobs you’ve created, the taxes you pay, the properties you rent and how you’ve assisted your community financially.  Attend meetings and stay in tune with what is happening in your community. Visit the SFATA website to get more information about issues in your state. Rally your customers to attend meetings as well; have them share their stories.  It’s important to engage with legislators and be part of the process as they are responsible for making decisions that affect your community and they need to hear from you.

Whatever the case is, consumer or business, advocating for an industry and the right to use new technology requires a lot of work. Consumer and businesses that engage and communicate with lawmakers have the ability to effectuate positive change. Legislators care about and listen to their constituents. Our website has tools to contact elected officials and information business owners can utilize for themselves and relay to their elected officials and communities  in support of the industry.


For more information, visit www.sfata.org.

British American Tobacco CEO, FD Interviewed On 2016 Half-Year Results

unnamedBAT has unveiled its 2016 half-year results with the company reporting growing volumes and market share gains.

In a video interview, Nicandro Durante, CEO, and Ben Stevens, FD, discuss the company’s strong performance, in spite of adverse currency fluctuations, and the outlook for the full year.

For the video, click on the links:

http://video.merchantcantos.com/companies/b/bat/

http://sites.merchantcantos.com/companies/b/british-american-tobacco/half-year-results-2016/

 

Right to be Smoke-Free Coalition and E-Vapor Industry Trade Associations file Motion for Summary Judgment in Lawsuit Challenging FDA’s Deeming Regulation and the Tobacco Control Act

unnamedToday, Agent VAPE received this client alert e-mail from Keller and Heckman:

On July 25, 2016, Keller and Heckman LLP, on behalf of the Right to be Smoke Free Coalition and ten national and state e-vapor industry trade associations (the “E-Vapor Coalition”), filed a Motion for Summary Judgement in a lawsuit challenging parts of the Tobacco Control Act (TCA) and the Food and Drug Administration’s (FDA’s) recently published “Deeming Rule” which, effective August 8, 2016, captures most e-vapor products as regulated tobacco products under the TCA. To review the motion and supporting brief, click here.

The named Plaintiffs in the E-Vapor Coalition lawsuit are the Right to be Smoke Free Coalition, the American E-Liquid Manufacturing Standards Association (AEMSA), the American Vaping Association (AVA), the Electronic Vaping Coalition of America (EVCA), the Georgia Smoke Free Association (GSFA), the Kentucky Smoke Free Association (KFSA), the Louisiana Vaping Association (LAVA), Maryland Vape Professionals (MVP), the Ohio Vapor Trade Association (OHVTA), the New Jersey Vapor Retailers Coalition (NJVRC) and the Tennessee Smoke Free Association (TSFA). Also supporting the lawsuit are the Shenzhen E-Vapor Industry Association-USA (SEVIA-USA), the Smoke-Free Alternatives Trade Association (SFATA), the Consumer Advocates for Smoke-Free Alternatives Association (CASAA) and NOT Blowing Smoke (NBS).
The E-Vapor Coalition lawsuit, which was filed on June 20, 2016 in the U.S. District Court for the District of Columbia, was consolidated with the lawsuit filed earlier in the same court, Nicopure Labs  v. FDA, No.1:16-cv-878 (D.D.C. 2016), on June 28, 2016. Following consolidation, the parties agreed to a briefing schedule that allowed Nicopure Labs to file its Motion for Summary Judgment on July 8, 2016, and the E-Vapor Coalition to file a separate summary judgment motion on its unique counts on July 25, 2016 (while incorporating by reference all of Nicopure Labs’ arguments). FDA has until August 16, 2016 - eight days after the Deeming Regulation becomes effective – to respond to both motions. All briefing will be completed by September 8, 2016, and oral arguments have been scheduled for October 19, 2016 at 10:00 AM ET in Washington, D.C.
In its Motion for Summary Judgment, the E-Vapor Coalition argues that FDA’s authority over tobacco products is not unfettered, but circumscribed by the statute’s underlying purposes – which strike a careful balance between various policy issues. Specifically, the statute provides that adults must have continued access to tobacco products (i.e., FDA cannot ban or virtually eliminate such products from the marketplace), while at the same time prohibiting access to such products by underage consumers. Along similar lines, the TCA requires FDA to regulate in a flexible manner so that relatively safer products can be developed and commercialized while more dangerous ones are kept off the market. Any effort by FDA to deem additional tobacco products under the TCA must reflect these compromises.
During the rulemaking, FDA repeatedly acknowledged that using e-vapor products likely presents far less risk than smoking cigarettes, and that individuals switching from combusted tobacco products to e-vapor products may significantly reduce their harm. The agency also recognized that the availability of e-vapor products could potentially lead to increased smoking cessation rates in this country and ultimately reduce tobacco-related disease and death – another one of the primary purposes of the TCA. These conclusions are consistent with scientific research, both in the United States and abroad, finding that e-vapor products are substantially less risky than combustible tobacco products. See, for example, Public Health England’s recent report finding that e-vapor products are 95% less harmful than traditional cigarettes, which was followed by the Royal College of Physicians’ ground breaking report lauding the public health benefits of e-vapor products.
Nevertheless, FDA chose to regulate e-vapor products in a manner that is even more stringent than its regulation of cigarettes. Resulting in what will be a virtual ban on many (if not all) vaping product categories is FDA’s decision to force vaping product manufacturers into a Pre-Market Tobacco Application (“PMTA”) process that was actually designed to prevent the introduction of relatively more harmful tobacco products to the market. Accordingly, PMTAs require, inter alia, long-term clinical studies which, as FDA concedes, do not yet exist. These longitudinal studies must focus on population-level effects, such as the impact of each e-liquid or vaping device on overall smoking initiation or cessation rates.
FDA’s approach also effectively writes out of the TCA one of the pre-market authorization pathways – the Substantial Equivalence (“SE”) Report – that Congress intended for FDA to use in a more flexible exercise of enforcement authority so that relatively less risky products, like e-vapor products, remain on the market and are available to adult consumers so long as they do not raise different questions of public health compared to a predicate (grandfathered) product. The SE Report pathway, while also imposing substantial informational requirements on manufacturers, does not necessarily require long-term clinical studies and, as such, is not as burdensome in terms of time and financial resources as PMTAs. However, without any grandfathered products available for use as predicates, all e-vapor products introduced after February 15, 2007 are forced to go through the PMTA process, which the agency admits will eliminate, at a minimum, 97% of the industry.
With no way to avail themselves of the SE Report pathway, for each vaping product on the market onAugust 8, 2016, manufacturers will have to file a PMTA within a two-year compliance period (i.e., by August 2018). Vaping product manufacturers will not have sufficient time over the next two years to conduct such long-term clinical studies or have the financial resources to meet other PMTA informational requirements that, according to the agency, will likely reach into the millions of dollars for each product application. Moreover, any new e-vapor products intended to be introduced after the effective date of the rule will have to first obtain PMTA authorization – essentially freezing the market on August 8, 2016.
Thus, instead of tailoring the pre-market process based on the type of tobacco product involved, the agency unlawfully adopted a “one-size-fits-all” pre-market regime that ignores e-vapor products’ overall lower risk profile. The E-Vapor Coalition’s motion highlights several of the Deeming Rule’s short-comings, specifically:
  • FDA has applied a statutory February 15, 2007 grandfather date to e-vapor products that was intended for traditional tobacco products, like cigarettes. FDA was required under the statute to set a new grandfather date which would allow e-vapor products to take advantage of the more flexible SE pathway.
  • FDA did not consider, as required under the Regulatory Flexibility Act (“RFA”), 5 U.S.C. §§ 601, et seq., any significant alternatives that, in the absence of a new grandfather date, would have allowed vaping product manufacturers sufficient time to develop the extensive information, including long-term clinical studies, necessary to successfully navigate the more stringent PMTA process. As it stands now, such data cannot be generated by the PMTA deadline of August 2018.
  • Even if FDA is correct in that it must apply the February 15, 2007 grandfather date to e-vapor products, this means that the TCA itself violates substantive due process and is unconstitutional. Under this scenario, there would be no rational relationship between the TCA’s underlying purposes and the means chosen by Congress to accomplish such goals. Indeed, as FDA conceded during the rulemaking, virtually all manufacturers will exit the vaping market, thus depriving adults of a relatively safer tobacco product and a chance to reduce or, better yet, quit their smoking habits.
Accordingly, the E-Vapor Coalition has requested the court grant it summary judgment and: (1) declare that the Deeming Rule exceeds FDA’s statutory authority, is arbitrary and capricious, or an abuse of discretion under the Administrative Procedure Act with respect to FDA’s failure to either establish a new grandfather date for all deemed e-vapor products or exercise its enforcement discretion in this regard; (2) set aside the Deeming Rule to the extent that FDA has applied the February 15, 2007 grandfather date to e-vapor products, and remand the rule to FDA so that the agency can set a new grandfather date for all deemed e-vapor products consistent with the Court’s decision; (3) remand the rule to FDA so that the agency can conduct a proper regulatory impact analysis that addresses the lack of long-term clinical data for e-vapor products; and/or (4) declare the rule unconstitutional to the extent that it applies the February 15, 2007 grandfather date to e-vapor products.
For more information on the lawsuit and updates, visit www.r2bsmokefree.org. To learn more about Keller and Heckman’s e-vapor practice, visit www.khlaw.com/evapor

 

VAPE Magazine to Publish Special Regulatory Issue in September

reguatlion-socialVAPE Magazine, the vapor industry’s original publication, announced this week it will be publishing a regulatory focused issue. The special issue, which will hit newsstands in September, will be focused on the regulatory environment the industry is now facing. A portion of all advertising proceeds from the issue will be donated to the Right to be Smoke Free Coalition lawsuit, which was joined by the industry’s top trade and consumer advocacy organizations.

The edition will feature a wide range of regulatory topics including a story about the market being flooded with new products ahead of the Aug. 8 deadline; a story on the new vapor tax in Pennsylvania and potential repercussions; a story on the potential birth of a vapor black market; and many more stories aimed to educate the public.

“We hope this will be an issue that retailers, manufacturers and distributors will keep at their desk for years to come,” said Managing Editor Corey Noles. “While we don’t usually publish in September, at the rate with which information is being released, we believe it is our job to give the industry a trusted news voice. Sometimes, that means changing our plans.”

“We appreciate our readers and advertisers who have supported us over the years, and we feel a responsibility to them as our industry navigates what will undoubtedly be remembered as it’s fight to stay alive,” Noles said. “Education is the first step to winning the war.”

New subscribers will receive a complimentary copy of this issue. SUBSCRIBE HERE for $4.99

For advertising information, email sales@vapemz.com or call (800)958-6427.

VAPE Magazine is the industry’s premier publication, with more than 60,000 in readership each bi-monthly edition. The magazine can be found in nearly every vape shop in the United States, UK and other countries around the globe. Visit the magazine online at vapemz.com.

For advertising information, contact Jon Laverde at jon@vapemz.com. For news information, contact Managing Editor Corey Noles at corey@vapemz.com.

 

Mistic E-Cigs Introduces Sub-Ohm ‘Pod-Mod’

mistic-e-cig-logoMistic E-Cigs introduces the Mistic 2.0 POD-MOD, a sleek and powerful closed-ended personal vaporizer that enables consumers to quickly and easily change flavor tanks using the company’s pre-filled pod technology.

Selling for $39.99 at drug, mass and convenience retailers nationwide, Mistic’s new pre-filled vape system starter kit comes in two color options (matte black and matte white), each packaged with two free (a $40 retail value) pre-filled 10 mL flavor pods (matte black: tobacco/strawberry and matte white: menthol/cherry).

“This product simplifies the vaping experience covering the full spectrum of vape consumers,” said John Wiesehan Jr., CEO of Mistic. “It gives the experience, flavor profiles, and vapor production that mod users are accustomed to and also provides ease of use to cig-alike users who haven’t upgraded because they didn’t want to deal with the hassle of bottles and tanks. With a simple pick, click and vape, users can experience different flavors at a moment’s notice.”

Available in a compact, hand form-fitting rechargeable 30-watt unit with an automatic shut-off feature, Mistic 2.0 delivers a robust and satisfying vape from a 1700 mAh battery with the convenience and no-hassle of a cigalike. The battery also has an on-off option as well as stand-by mode to help conserve power.

Offered in 10 mL child-resistant, tamper-proof pre-filled pods, Mistic 2.0 high-end e-liquids (80 VG/20 PG ratio) are made in the USA and available in 4 mg nicotine strengths (4 percent by volume) and 10 flavors: cherry, coconut cream, creamy cantaloupe, fruit mix, java, mango, menthol, strawberry, tobacco and watermelon.

Selling for $17.99-$19.99, each Mistic 2.0 pre-filled pod has its own built-in coil that provides 0.3 Ohms of resistance for maximum sub-ohm vapor production. Each self-contained pod is easily interchangeable for vapers on the go or those wanting to effortlessly experience various flavor profiles.

The company is offering a free Mistic 2.0 POD-MOD starter kit when users spend $30 or more in its online store. Adult consumers can watch a short video about the new product on Mistic’s Facebook page (https://www.facebook.com/MisticElectronicCigarettes) to obtain a special coupon code. 

Today’s announcement comes two weeks before the U.S. Food & Drug Administration’s (FDA) final rule on the manufacturing and marketing of newly deemed vapor products go into effect on Aug. 8. Products shipped after this date will not be allowed on the market until the FDA approves a marketing order.

“Innovation is key to our industry’s survival and it was important for us to bring our game-changing vaping technology to adult vapers and smokers before the FDA’s deeming rule goes into effect and stifles future modernization,” added Wiesehan.  “While the FDA pathway for vapor products is still relatively unclear and already there are legal challenges to the final regulations, as well as pending legislation to move the February 15, 2007 predicate date, we are taking steps to ensure that our products remain on the market and will proceed with the pathway process for our new Mistic 2.0 line and other company vapor products.”

 For more information on the company, visit www.misticecigs.com and www.HAUSvape.com, follow on Twitter @MisticEcig and @HAUSpv, watch on YouTube, or like on Facebook at MisticElectronicCigarettes and HAUS.

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