Some Pondering on Vapor Directories as Bills Fail Across the Country:
As you are aware many communities across the front range and in our mountain communities have taken up product restrictions and other prohibition policy measures because of the increased prevalence of youth use relative to vaping products. The organization known as Tobacco Free Kids, uses flavored vaping by youth to target products that youth do not use, for bans and undermines the voter approved revenue streams that fund essential programs in Colorado.
CWPMA understands some of the market access issues is inherent in the FDA set dates around the PMTA process but what we urge folks to think about is the simple benefit that a registry, similar to the current registry maintained by the AG’s office relative to cigarettes, has for brick and mortar store operators who try to follow federal, state, and local laws.
1. Make a list
2. Be on the list
3. If you’re not on the list don’t come into my store and ask me to sell your products.
I wanted to share a letter from four years ago (attached) that the largest association groups in our trade sector sent to the FDA begging for them to establish a PMTA application list so that our retailers could have some clarity on what products were legal or not when distributors come into our stores asking us to sell products.
Four years later no list – (except for one that with only authorized products)- and the FDA is caught up in a legal purgatory fighting lawsuits from our colleagues in the vaping space. As I have stated before, the PMTA process is not perfect and the standard to prove that you are not marketing to kids is pretty high. It is more likely than not that some products that are on shelves today will never make it through the PMTA process. However, I am frustrated that there seems to be a notion that registries at the core are not helpful and that these proposals are only about larger tobacco manufactures and market share.....and I thought by showing you this letter which shows that folks have been asking for almost half a decade for regulatory clarity.
A better path forward might be to support legislation that would establish a registry where manufacturers shall simply submit PMTA status to the Attorney General. This effort and submission shows that our wholesalers, manufacturers and first importer partners can prove to small businesses that they are trying to be compliant with the Federal laws. There doesn’t need to be store level enforcement of this law, it could be informational only. But it would serve as a tool for retailers.....be in the directory or find someone else to wholesale your products to.
During flavor ban debates, Vaping shops in particular often advocate for an “age restricted store amendment,” where flavors across all categories can only be sold in these stores… this solution is discriminatory, myopic and undermines the trade channel that pays for the majority of the entire state enforcement program in Colorado. A better path forward would be for stores that allow people under 21 into the stores, to restrict products to those on on the registry in this category for sale. (E-vaping space) The benefit would be because we are following federal law that stores would have their products exempted from flavor restrictions. This has the ancillary benefit of securing long term excise revenue for key state programs.
For age restricted stores that want to continue selling these products this proposal has the following benefits:
- It gives them additional time to navigate the PMTA approval process.
- It gives their (vaping stores) federal level lawsuits (mostly aimed at the FDA) time to be resolved.
- It helps stores even that are age restricted know which manufacturers are trying to be compliant with Federal law by providing information on products like Elf Bar who rebrand when federal level enforcement focuses on their products.
Colorado in particular could demonstrate that when the state takes the policy lead that the Federal government has a hands off approach... We have an entire industry here that is illegal by Federal standards....namely marijuana.
What is coming like a freight train absent state involvement, are FDA inspectors or state agencies on FDA contracts that are coming into our stores and levying store killing penalties because stores are selling products that are in violation of federal law where the store owner doesn't even know. A bill of lading registry status requirement would go a long way in providing relief for store owners who are unsure. Convenience store owners don’t have the privileges of other trade channels where we get to pick and choose which laws we follow.
We are anticipating a slew of proposals this summer including in Denver, which seek to ban adult products because of youth use of flavored vaping. While imperfect, through the PMTA process you have to prove you don’t market to kids and that the products are not detrimental to public health. By protecting trade channels that follow laws at all levels of government and who sell products in the E-vapor space that are in the PMTA process or where the products have been approved, we can protect the categories that have nothing to do with vaping.
In Blue states like Colorado - registries help avoid flavor bans... Everyone deserves to have a shot at FDA and PMTA compliance and the dates in these bills (which mirror federal set standards) do have market impacts. But foreign companies rebranding products (I'm talking to you ELF BAR) and marketing products that are designed to appeal to kids, is going to lead everyone across all categories .... to the guillotine.