Kelsey Davis

Montgomery Advertiser

Citing a rule that will “annihilate” the vaping industry rather than regulate it, owners of three Alabama vapor shops have filed suit against the FDA.

The FDA rule, which was adopted in May and will be enacted in Aug., is an extension of the 2009 Tobacco Control Act - a statute that gives the FDA regulatory authority over all tobacco products.

Under the new regulation, vaping devices and e-liquids are defined as “tobacco products” even if the product contains no tobacco, the suit argues.

Vapor shops typically sell electronic inhalation devices that convert e-liquid into vapor. The devices provide a sensation similar to smoking a cigarette, but doesn't burn tobacco. Some e-liquids contain tobacco-derived nicotine or nicotine that isn't derived from tobacco. Some don't contain nicotine or tobacco derivatives at all.

“The vast majority of the plaintiffs' products - including hundreds of products not made from or derived from tobacco or intended for human consumption - will be subject to the premarket approval, reporting, recordkeeping, inspection, labeling, manufacturing, testing, and other requirements imposed by the Act,” states the complaint.

Joe Hubbard, who represents the companies, said these regulatory expenses would cost the businesses between $390,000 and $790,000 up front, and at least $450,000 in annual compliance costs.

Daleville vapor shop Operation Vapor brings in about $186,000 a year, said owner Karen Anderson.

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“Realistically, there’s going to be no products to sell. I don’t see vapor shops making it,” said Scott Eichelberger, president of Breathe Easier Alliance of Alabama, a group that aims to protect Alabama’s vaping industry.

Operation Vapor, Tiger Vapor located in Opelika and Montgomery’s Cyclops Vapor 2 are all plaintiffs in the suit. The suit states that none of these businesses sell products that contain tobacco. Some of the products do contain nicotine, which the new FDA rule seeks to better regulate.

Four other similar suits have been filed across the country - one in California and three in Washington D.C.

“D.C.’s court is a court that’s focused on administrative regulation. We chose to file this here in Alabama because we have faith in the people of Alabama, that they know what federal overreach looks like. They will be the ones to hear this case and decide if the FDA is overreaching its statutory and constitutional boundaries,” Hubbard said.

“We know that Alabamians will understand the impact this (FDA regulation) is going to have for them. 150 small businesses will have to close their doors. A thousand Alabamians would lose good paying jobs.”

Hubbard added that unlike the other pending suits, Alabama’s is the only that demands a jury trial.

Vapor shop owners who brought the suit emphasized that they were not against all FDA regulations, just the ones that they believe would cripple their business.

“We’ve been asking for decent regulations for years,” said Zack Carpenter, who owns Cyclops Vapor 2. “We’re not opposed to regulations, we just want them to be fair.”

Shops such as Carpenter’s that manufacture e-liquid used for vaping devices will be hit the hardest, Anderson said.

“It’s not going to be an instant thing, but it’s scaring a lot of people off. The first day (the FDA) announced the regulation, we got a call from six of our stores that we deal with and they said, ‘We’re not even trying. We’re shutting down,’” Carpenter said.