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Will big tobacco snuff out vape shops?

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The vaping industry is at a major crossroad. Depending on what happens next, e-cigs (pens, APVs and mech mods all combined) will either rot in the land of once-hyped forgotten gadgets, or would-be smokers will instead spend late nights puffing away in a hip sweet-smelling vape lounge with a beer (or coffee) in one hand and a pimped-out mod in the other.

There is a newly proposed plan (pdf download) at the Food and Drug Administration for how it could regulate the industry. If the FDA rules stand, the restrictions could wind up choking small vape businesses and clear the path for big tobacco firms poised to cash in on the trend. Per the FDA’s proposal, any e-cig product made after 2007, including new models, must get FDA approval to be sold. That means hiring experts to do medical research to determine the health impact of the device, which can take months and cost an estimated $3-4 million and take 5,000 hours for each application.

But the new blueprint was also notable for what it did not contain: any proposal to ban flavors in e-cigarettes and cigars, like bubble gum and grape, that public health experts say lure children to use the products, or any move to restrict the marketing of e-cigarettes, as is done for traditional cigarettes, which are banned from television, for example.

F.D.A. officials said the new regulations were the first major step toward asserting the agency’s authority and eventually being able to regulate flavors and marketing. But doing so will require further federal rulemaking, they said.

For example, to restrict the use of flavors, the agency would have to establish a factual record that they pose a health risk for young people. The same goes for marketing, an area that has been vulnerable to litigation from industry. The agency tried to impose graphic warning labels on cigarette packaging, for example, only to have tobacco companies fight the measure in court and win on grounds that it violated their First Amendment right to free speech.

“You can’t get to the flavors until you have regulatory authority over them,” said Mitchell Zeller, director of the Center for Tobacco Products at the F.D.A. He called the blueprint “foundational.”

The regulations establish federal authority over tobacco products that were not named in the 2009 tobacco control law, including certain dissolvable tobacco products, water pipe tobacco and nicotine gels. E-cigarettes are considered a tobacco product because their main ingredient, nicotine, is derived from tobacco.

Needless to say, most of the merchants selling e-juice don't have that kind of cash. Vape shops which, despite statewide vaping bans and increased pressure from the government to stymie the trend, are popping up all over the country and would be left with no suppliers to source products for their stores from.

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