S.C. Senate Passes Bill Banning Most Vape Devices

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A bipartisan coalition of South Carolina state senators voted to pass a bill banning the sale of all but a select few vape devices in the Palmetto State – proposing to add state-level enforcement to existing federal Food and Drug Administration (FDA) regulations.

The bill (S.994) would limit South Carolina retailers to selling only devices currently approved by the FDA – while temporarily permitting the sale of devices pending review by federal bureaucrats or courts.

Proponents of the bill cited the state’s need to protect children form nicotine addiction, while it’s critics called the legislation a win for “big tobacco” – and a loss for adults hoping to use vaping devices to quit smoking.

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FDA REGULATION

The 2009 Tobacco Control Act empowered the FDA to “regulate tobacco products under the Federal Food, Drug, and Cosmetic Act” and to “ensure that the Food and Drug Administration has the authority to address issues of particular concern to public health officials, especially the use of tobacco by young people and dependence on tobacco.”

In 2016, the FDA promulgated a “deeming rule” – a regulation declaring that “E-Cigarettes, Cigars, and All Other Tobacco Products” fall under the agency’s jurisdiction. Prior to this declaration, the largely unchecked E-cigaratte industry had operated with little regulatory oversight.

Following this determination, companies with products on the market had to submit applications for FDA review – resulting in some 26 million products being brought before the agency. The agency purportedly conducted its review “based on a public health standard that considers the risks and benefits of the product on the population as a whole.”

Out of 26 million applicants, only 23 products have been granted legal access to the marketplace. Attorney Dave Dobbins argued in a Food and Drug Law Institute web article that the FDA unscientifically selected which products to approve.

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“How are manufacturers to adequately meet the (appropriate for public health) standard when it is becoming increasingly apparent that the regulating agency doesn’t have a consistent view of what it means? Dobbins asked.

It should be noted that so far only tobacco flavored devices have been approved by the FDA, with the agency rejecting the application of the nation’s most popular vape, the Menthol Vuse Alto. At the moment The U.S. Court of Appeals for the Fifth Circuit has permanently stayed enforcement of this ruling pending judicial review of the agency’s rejection.

And while millions of applications were rejected in bulk by the agency, a number of applications of devices with established market share have yet to be ruled on, leaving key industry players in limbo.

This issue was discussed at length on the S.C. Senate floor.

“The concern with constituents at home is that this FDA process is flawed” senator Deon Tedder said, referring to the agency’s refusal to make key determinations.

“There was a case in the fifth circuit court of appeals, and what the court said was that FDA’s denials for petitioners … were arbitrary and capricious.” Tedder continued. “The FDA in depositions admitted that they just blanket disallowed certain applications, without even going through a vetting process, which essentially is not equitable.”

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Still, many titans of the tobacco industry are on-board with FDA regulation – as the agency’s bulk rejection of their competition ensures established, well-connected players maintain their domination of the market. Should the South Carolina bill become law, new entrants would be barred from selling products in the state. Tedder explained this mechanism from the senate well.

“Say you have a shop in your district and you know they want to manufacture product and it’s otherwise legal, they can submit their application, but essentially, with the language here who knows when or if they ever will be able to operate in South Carolina,” he said.

FDA rules clearly favor tobacco industry giants, but these titans have had one major problem – nobody is following the FDA’s rules. Thousands of un-approved vape devices are sold at stores accross the country on a daily basis.

A quick look into the many vape stores that have cropped up around the Palmetto State in recent years serves to confirm this. Simply put, the FDA lacks the legal muscle to combat the multi-billion-dollar vape industry.

This is where states have stepped in, using their law enforcement resources to crack down on dealers of un-authorized vapes.

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VAPE DIRECTORIES ACROSS THE NATION

Louisiana is one state which has already implemented a similar legislative framework to the restrictions currently being considered in South Carolina.

Louisiana’s “vape directory” currently contains products which have been formally approved for sale – along with the numerous products whose FDA rejections have been stayed pending the outcome of litigation, as well as products not yet ruled on by the FDA.

While the legality of the enforcement of the directory was challenged, courts ultimately ruled in favor of the state, and in doing so demolished the business models of many of the state’s vape retailers. One store owner told a local television station “we had to let go of some of our employees too because we can’t afford to keep everyone.”

Store owners argue this was the intent of big tobacco, who are the only manufacturers of FDA-approved devices.

“Nearly all other popular products would be illegal to sell — including most disposable vapes and bottled e-liquid,” according to a Consumer Advocates for Smoke-Free Alternatives Association (CASAA) press release.

“Registry laws make vape shops instant targets for law enforcement” the release alleged, “which is a goal of the tobacco companies seeking to protect their inferior vape products from competition.”

Louisiana isn’t alone in instituting this kind of registry. Similar legislation has been passed or is currently moving through the legislatures of Alabama, Arizona, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Mississippi, Missouri, Nebraska, New Hampshire, New York, Oklahoma, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming.

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THE FUTURE OF VAPING

While such market-limiting laws haven’t been approved in all of those states – or in South Carolina – it is safe to assume we aren’t dealing with a simultaneous and spontaneous movement to introduce this type of registry nationwide without outside influence.

It follows logically similar bills will be introduced in other states, which begs the question: What will happen once this legislative framework has been implemented in most of the nation?

As noted earlier, the FDA has only approved tobacco-flavored vape devices, which are unpopular among consumers due to their flavor – which one vape user described to this author as “similar to that of old shoe leather.”

The FDA has rejected applications for all flavored and menthol devices – which are currently the most popular among users – although pending litigation currently keeps many of the devices on store shelves. The agency has cited their popularity with young users as a reason for the rejections – and use by youth was among the topics discussed by South Carolina senators.

Throughout the debate, senators cited concerns raised by parents and schools in their district, with bill sponsor (and Senate president) Thomas Alexander bringing multiple bags of vapes confiscated at schools in his district to the senate chamber.

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Senator Billy Garrett pointed to the bags – telling his colleagues they were the same devices the bill intended to ban. When asked if the devices were already illegal to sell to minors Garrett told the body “you’re not supposed to sell them to underage people, obviously, but they’re getting it.”

FDA bureaucrats have waged a multi-year war on menthol cigarettes and vape products, often citing youth usage. But their efforts have been met with public and political pressure to slow-roll bans. In April 2022, the FDA announced it’s intention to ban menthol cigarettes and flavored cigars, but faced pressure from the Biden administration to postpone the regulation, which is unpopular with many Democratic voters.

According to a CNN report, in early 2024 the Liberty Policy Foundation launched a digital advertising campaign targeting black voters in South Carolina who were dissatisfied with Biden’s governing – hoping to test the efficacy of the attack for potential general election advertising.

Since the FDA has never actually approved any menthol vaping device, they could easily sidestep another pitched political battle by refusing to make determinations about the legality of popular menthol devices until a sufficient number of states have committed themselves to enforcing FDA vape regulations, at which time opponents will have little leverage to oppose the move.

Having cleared the Senate, South Carolina’s vape registry bill is now headed to the state’s House of Representatives. Count on FITSNews to continue to report on the progress of this legislation as it makes its way through the legislative process.

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ABOUT THE AUTHOR …

(Via: Travis Bell)

Dylan Nolan is the director of special projects at FITSNews. He graduated from the Darla Moore school of business in 2021 with an accounting degree. Got a tip or story idea for Dylan? Email him here. You can also engage him socially @DNolan2000.

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