The FDA and hardware (questions)

[gpjoe]

OK, admittedly I have been remiss in not keeping up with all of the threats to vaping, though I do respond to all calls for action that I see posted here. Having revealed that, I have a question. I see a lot of folks here posting things like "I'm going to pick up a couple extra (regulated mod, mech mod, tank, etc) and stash it away for when the FDA regulations take effect. Note that I am referring to hardware. So, my question and a follow-up statement (opinion):

How can the FDA possibly regulate a battery operated device? If it is sold as something NOT specifically called an ecig, how can this be enforced? I always thought that the hardware would still be available as a "power supply with 510 connector" or "back-up battery tube". Please help me out here, as I am ignorant to the pending/proposed regulation.

Now, my assumptions (in addition to the above), which may be waaaay out of touch:

I envisioned coming regulation on nicotine base and pre-made e juice. A situation where it would be impossible to buy juice or the nic base without crazy taxes. I see a situation where companies like Cuttwood, Suicide Bunny, Five Pawns (for example) might offer just the flavoring which could be added to people's existing stash of nic base, or even to pure pg/vg (with no nic) to have something to vape, thereby skirting the regs, and taxes. It is, after all, just flavoring right?

Someone care to wake me up?

 

[BreSha6869]

Tanks would be a bigger issue than mods IMO. Tanks are made exclusively for vaping juice.

Be hard to regulate mods IMO.

 

[Racehorse]

Watching the bans roll across the US, local usage bans in public are the problem. By the time the FDA gets around to doing anything it will all be done at the local level.

As for hardware, explain to me how the FDA can say that hardware is a "tobacco product".

Even under the new FSPTCA, they can deem e-cigarettes made from nicotine derived from tobacco under its authority and regulate them (ecigs that come with prefilled nicotine carts). They can eliminate or control nicotine in eliquid, they can ban flavors, they can ban online sales of bottled eliquid (like they have done in AR) etc. They "can" regulate the marketing and the labelling. Local bans can (and already have) regulated use in public (where the bigger problems are IMHO). .

But if the FDA tries to regulate hardware they will be faced with major legal challenges. Because hardware is not a tobacco product. (The federal government defines a tobacco product as any “product made or derived from tobacco that is intended for human consumption.”)


Besides, has anyone noticed that cigarettes aren't banned? That is because they are a cash cow. My prediction is that ecigs will be seen as a similar cash cow. If 20% of the smoking population has or will switch over to an ecigarette, they will want THAT money in their tax coffers as well. (As a matter of fact, if they try to ban it, I suspect many states themselves will start bringing lawsuits against the FDA They NEED the money!)

(I realize some won't agree but my governor and his merry group of republicans already saw this............banned online sale of eliquid coming into the state......but still have it on the shelves for face-to-face purchase, and plans to vote to tax it in 2 years. They have ZERO interest in banning eliquid, and hardware is still totally legal in EVERY respect. This guy was in with homeland security, he knows where it's going and got a "leg up" on the other states by passing this law, i.e. just made eliquid the same as cigarettes and now taxable..........they still want to make MONEY from it. They can't do that if it's banned.

So, eliquid won't, IMHO, be banned. It will be heavily regulated, inventoried, tracked and taxed. But they can't touch hardware without actually changing federal laws because the FDA has no jurisdiction over hardware, any more than they have jurisdiction over flashlights.

My prediction is that vaping will go on, but it will just end up costing you as much, or even more, than smoking did. Let's see if I'm right.

 

[skoony]

Yes they can regulate every single piece of hardware under the intended use doctrine.
That is what the deeming reg.'s intend to do. The question is how could they do it and
just as importantly will they try.
Theoretically under the intended use doctrine if the FDA notices a vendor selling a lot
of flashlights with 510 connections and discovered they were being used for vaping
devices they could flag the vendor. The vendor didn't advertise them as vaping products
but,customers are using them for that purpose. Advertised use v actual use. Its the
FDA's contention the vendor should know what the actual intended use is an therefore
is in violation. Whether or not the vendor is aware of the actual use is not relevant.
Again how they will go about doing this is anyone guess. I suggest if you can stock up
on some juice,extra batteries tanks and parts before the reg.'s are released. There will
be an almost 2 year period before they become final. If the reg.'s are really harsh 2
years is enough to do some major stockpiling. The price's may be higher but you'll
have enough time.

Regards
Mike

 

[Frenchfry1942]

I see wording like, "tobacco delivery system related" as the danger. Cop catches you, cites you, you take it to court to argue, the judge agrees with the law. A mod or tank is just a little hard to argue for when the the cop says you were using it.

For the individual user, it will be a crock.

 

[Bunnykiller]

welll,,, the FDA even has laws/rules regarding the use of pots and pans and eating utensiles... I kid you not...
and there are rules about the paper wrapper you get with your cheeseburger to go...

 

[englishmick]

As for hardware, explain to me how the FDA can say that hardware is a "tobacco product".

Even under the new FSPTCA, they can deem e-cigarettes made from nicotine derived from tobacco under its authority and regulate them (ecigs that come with prefilled nicotine carts). They can eliminate or control nicotine in eliquid, they can ban flavors, they can ban online sales of bottled eliquid (like they have done in AR) etc. They "can" regulate the marketing and the labelling. Local bans can (and already have) regulated use in public (where the bigger problems are IMHO). .

But if the FDA tries to regulate hardware they will be faced with major legal challenges. Because hardware is not a tobacco product. (The federal government defines a tobacco product as any “product made or derived from tobacco that is intended for human consumption.”)

You may be right there. The FDA is operating under the tobacco product umbrella. The States can do anything they want because they are starting with a blank sheet of paper, they don't have to prove a connection to tobacco.

I wonder to what extent they are coordinating their efforts or even talking to each other. That doesn't seem to be happening. The Feds are trying to ban them while the States are concentrating on taxes. Maybe they aren't as smart or well organized as we might assume.

 

[Rossum]

As for hardware, explain to me how the FDA can say that hardware is a "tobacco product".

The same way they say that rolling papers are a "tobacco product".

 

[englishmick]

I see wording like, "tobacco delivery system related" as the danger. Cop catches you, cites you, you take it to court to argue, the judge agrees with the law. A mod or tank is just a little hard to argue for when the the cop says you were using it.

For the individual user, it will be a crock.

If it came down to a court, would they have to prove there was nicotine in the thing?

 

[VapeinCA]

I think they will target at juice instead of hardware....

 

[Rule62]

Hookahs and glassware haven't been Federally banned. I doubt e-cig hardware will be either.

 

[Flt Simulation]

I agree with what members Racehorse, VapeinCA, and Rule62 are saying ...

There is no way in hell the government is ever going to ban mods, batteries, atomizers, drip tips, wire and cotton wicking material, battery chargers, or any of the rest of the stuff we would call "hardware".

And as far as juice, they are not going to ban USP glycerin, concentrated flavorings or propylene glycol.

The only thing the government is going to go after is anything related to vaping that contains nicotine (unflavored PG base with nicotine, unflavored VG base with nicotine, pre-mixed retail e-juice containing any amount of nicotine and prefilled e-cig cartomizers containing nicotine).

Most states probably won't out and out ban these products that contain nicotine, but will add a heavy sin tax to them. And they more than likely not be available from mail order since then there would be no way the states could be guaranteed that they would be able to collect there tax on the nicotine product.

I am not going to start hording any sort of vaping hardware, but I am seriously considering stocking up on unflavored PG base with nicotine ... at least I will always be able to make my own DIY juice.

And since I mentioned DIY juice, I predict that flavoring will always be available since flavorings are used in just about everything we put in our mouth .... The Feds ain't never going to be able to control the sale of concentrated flavorings.
_________________________________

Although the possible high taxation on vaping products that contain nicotine is not anything we all look forward to, it don't mean that the "Sky is Falling" either.

Again, if you worried about possible local banning in your area, or high taxation of vaping products that contain nicotine ... stock up

 

[skoony]

As for hardware, explain to me how the FDA can say that hardware is a "tobacco product".

But if the FDA tries to regulate hardware they will be faced with major legal challenges. Because hardware is not a tobacco product. (The federal government defines a tobacco product as any “product made or derived from tobacco that is intended for human consumption.”)

You answered your own question.The concept of what they consider a tobacco product is very easy
to understand and on the other hand very difficult.
First one must consider what we all agree is a tobacco product. The cigarette. It contains real tobacco
rolled in paper glued together,sometimes with a filter. the paper,glue and,filter are considered a tobacco
product as they are used in the actual consumption of the product. Try smoking free floating tobacco.
What about pipes? The FDA in fact has the authority to regulate them. They choose not to for all the
obvious reasons. No two pipes even made from the same block of would are identical. It would have
been a regulatory nightmare. Lighters are considered accessory's because Once the cigarette is lit
its no longer necessary for the consumption.
Now we look at the e-cigarette. For simplicity lets just look at your basic cigalike. It looks like a
cigarette. Its roughly the same size. It makes cloudy looking stuff that looks like smoke. So far
so good. Here's the tricky part. What do we need to consume our product,e-juice. At the bare
minimum we need a battery,switch,coil and tank with a flow control system working in conjunction
together with every puff we take. Ergo,your basic e-cigarette is derived from the predicate product
the tobacco cigarette. There is no smoking cigarettes without the paper and glue. There is no vaping
without the battery switch,coil and,tank with a flow control system.
The term derivative is a first generation concept. It means taken right from the source and
is pretty much a original part of that source. ie, snuff,chewing tobacco etc.
The term derived is a generational concept. This means it takes the place,copy's,mimics,
the original product in whole or in part.
So what does this mean? Consider the simple bottle rocket that has a retort.(retort,bang at the end of flight)
What would be a modern equivalent? I would suggest the Atlas SM-65. This was the first operational ICBM.
One could go as far back to ancient China when crude gun powdered rockets were used in warfare.
Generational derivatives,hence the phrase derived from which does not mean made out of.

Regards
Mike

 

[ReigntheGamer]

The same way they say that rolling papers are a "tobacco product".

Not to mention that you can be ticketed or even arrested for possessing them because they can be considered paraphernalia. They can and will do whatever they want.

 

[skoony]

If it came down to a court, would they have to prove there was nicotine in the thing?

No. People mistakenly believe that it has to have nicotine. E-juice with nicotine came first. The FDA considers
this as being derived from a tobacco product. Ergo 0 nic is derived from the original nicked' eijuice and still
a tobacco product. See my post #13

Hookahs and glassware haven't been Federally banned. I doubt e-cig hardware will be either.

Under the FDA' proposed new intended use policy they will be.See my post #4

Regards
Mike

 

[ReigntheGamer]

Hookahs and glassware haven't been Federally banned. I doubt e-cig hardware will be either.

Not banned, but the same as papers get caught with them and you face legal consequences.

 

[Flt Simulation]

Not banned, but the same as papers get caught with them and you face legal consequences.

I don't know about your state, but here in Florida, you can legally purchase and have in your possession cigarette papers ... some people still roll there own cigarettes (which is not illegal at all anywhere in the US that I am aware of)

Tell me what state has made the possession of cigarette rolling paper a crime?

 

[englishmick]

I am not going to start hording any sort of vaping hardware, but I am seriously considering stocking up on unflavored PG base with nicotine ... at least I will always be able to make my own DIY juice.

I agree they may not be able to ban hardware. On the other hand if they can reduce vaping to a fringe hobby by putting punitive taxes on nicotine and juice there might not be a lot of hardware manufacturers around. A relative handful of folks with bottles of nic in the freezer wouldn't be much of a consumer base to support outfits like Kanger and Sigelei.

 

[ReigntheGamer]

I don't know about your state, but here in Florida, you can legally purchase and have in your possession cigarette papers ... some people still roll there own cigarettes (which is not illegal at all anywhere in the US that I am aware of)

Tell me what state has made the possession of cigarette rolling paper a crime?

In Texas you can be ticketed for having them, as well as cigars commonly used for other purposes.

ETA: The old workaround was to carry a little rolling tobacco with you. But if you just have the papers themselves it's up to the officer who stops you.

 

[Flt Simulation]

In Texas you can be ticketed for having them, as well as cigars commonly used for other purposes.

So, I guess rolling your own cigarettes is illegal in the state of Texas?