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The E-Cig Industry Will Choke on New FDA Regulations—Except Big Tobacco

The tobacco giants have the cash to get FDA approved, and sell their own e-cig products. The problem is, those products suck.
Photo by Ben Richmond

This article originally appeared on Motherboard.

E-cigarettes are at a crossroads. Depending on what happens next, the electronic tobaccoless smokes 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 in one hand and a pimped-out mod in the other.

Everything hangs on the Food and Drug Administrations newly proposed plan for how it will regulate the emerging 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.

Needless to say, most of the merchants selling nicotine-infused liquid for vaporizers 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 — would be left with no suppliers to source products for their stores from.

“There’s no vape shop anymore if this [law] goes through,” Greg Conley, former legislative director for the Consumer Advocates for Smokefree Alternatives Association (CASAA), told me. He’s now president of the American Vaping Association (yeah that’s a thing), and working with other advocates to convince the FDA to revise its rules.

The tobacco companies can spare the cash, and each megacorporation has its own e-cigarette brand on the market. The problem is, those products suck.

That’s not just an anti-establishment bias talking; the difference between pre-loaded ‘cigalikes’ sold by Lorillard (the Blu e-cig) or Reynolds tobacco (the Vuse e-cig) and the customizable DIY mods beloved by the vape community is like the difference between instant coffee and responsibly sourced beans hand-ground and brewed with a high-end filter by a loving if pretentious barista.


Walking into a vape shop is not unlike a specialty coffee shop or gastropub or wine bar; you can sample the menu and talk to an expert connoisseur about the product. Down the road, if business continues to boom, you can imagine shops applying for a beer and wine license, bringing in a DJ and turning into a nightlife venue reminiscent of the days of cloudy smoke-filled bars — but without the stench of burning tobacco.

In my Brooklyn hipster neighborhood, the second e-cig shop, Beyond Vape, will open this Friday. I stopped by the other day to check it out.

'The innovation in this space is out of control.'

As I sat at the counter sampling a whiskey-flavored e-juice, Chris Chuang, the owner, talked to me about vape culture. Hardcore users will spend hours watching a video tutorial to make their own coils, and customize their hand-crafted, made-in-the-USA piece with an organic cotton wick for a thicker cloud of vapor.

Fans shine up and show off and care for their mods like you would a new car, he said. E-juice companies create flavor recipes like a mixologist would craft the perfect blend for a cocktail. “Virgin Vapors’ organic, celestial honeydew is popular,” said Chuang. “Epic Juice’s Apple Jax tastes like Apple Jacks cereal and Airheadz tastes like the candy.”

Beyond Vape and other vaporiums sell hundreds of different liquid flavors — fruity, dessert, candy, coffee, nutty, so on.

“We carry these flavors because adults like them and they sell, not because minors like them,” Chuang said. “It also helps them to stop craving the tobacco flavor in cigarettes.”


The shop has roughly 30 brands of mods with new ones coming in weekly. The most expensive is the Zodiac, which will run you $250; it’s made in Korea and has zodiac animals engraved on the side — a more “artsy, designy mod,” explained Chuang.

“The innovation in this space out of control,” he said. “People care about the materials that are used in the mod. The best conductivity is copper. People like to have silver plated copper contacts on the top and bottom pieces that connect with the battery in order to give a more powerful, consistent hit…. People rely on YouTube reviewers for input on what to buy next. The most popular reviewers are Grimm Green, Phil Busardo, Rip Trippers, and Todd UK.”

By comparison, disposable e-cigarettes like the ones you can buy at the convenience store are a very different beast. The battery is rechargeable, but once the juice in the cartridge is empty, the device is toast. They come pre-loaded with one or two vaguely tobacco-like flavors, and that’s all you have to choose from.

The fear in the vaping community is that FDA regulations would inadvertently (or purposefully, as the more radical viewpoint goes) favor the big tobacco companies’ disposable cigs, essentially bringing the independent e-cig industry to a screeching halt.

Whether or not that's a good thing hangs on the controversial health question, and that debate is raging — a cursory Google search turns up hundreds of articles on the topic just in the last few days.


The scientific research is inconclusive, and more troubling, it’s hard to parse which studies are objective. Conely and other e-cig advocates I talked to claim the negative studies being fed to the FDA and the press by the Centers for Disease Control and various American health associations are pushing an abstinence-only prohibitionist agenda forged by decades of fighting against smoking.

It boils down to the common consensus that vaping is better for you than smoking, but not better than abstaining altogether and breathing clean air. And the jury’s still out on how much healthier than traditional butts the electronic versions are.

At the same time, there’s not much evidence beyond word of mouth that the electronic devices really help people quit smoking either, and some recent studiessuggested certain vape pens also burn hot enough to release carcinogens. What’s more, health advocates worry the flavors and ad campaigns are marketing the devices to kids, and reversing the hard-won stigma of cigarette-smoking in the US, which, as the Economist astutely described, “now ranks somewhere between theft and public indecency.”

Since the FDA classifies e-cigarettes as a tobacco product because the nicotine-infused liquid is derived from tobacco plants, vape companies have to prove they're “protecting the public health” to get agency approval — a tall order amid this muddied scientific argument.


That’s the rock. The hard place is that e-cig companies also can't expressly market their product as a smoking cessation tool because that would classify it as a drug and subject it to even stricter regulations. Meanwhile, Big Pharma is just as keen as Big Tobacco to squash the growing industry — US e-cig sales are at $724 million so far this year, up 72 percent from last year, according to Nielsen — which is likely cutting into profits from nicotine patches and other smoking cessation treatments.

What you wind up with is a big hot mess. Chuang says his vape shops — he has another store on a busy street in Manhattan — technically don't sell e-cigarettes at all. He sells bottles of nic-juice and metal devices that, “you could stick a light bulb in it and call it a flashlight.” The shop also stocks nic-free liquid, which then wouldn’t be subject to regulations either. He also doesn't explicitly market vaping as a way to quit smoking, but has plaques hung on the wall proudly displaying the date of customers' last cigarette.

Chuang told me he supports federal regulations — a sentiment I’ve heard before — because it can help ensure the products are safe. (One concern is shoddy, unregulated device manufacturing that leads to e-cigs exploding in people’s mouths.)

But, he clarified, that's only as long as the new rules are enforced fairly.

Follow Meghan Neal on Twitter: @meghanneal