Law Review Calls Out FDA For Destroying Vaping Industry


An article recently published in the Brooklyn Law Review claims that the FDA is causing the “destruction of the vaping industry”

The deeming rule is one of the most controversial topics concerning vaping today. When they were first passed back in 2016, many in the vaping community saw it as a significant issue for the industry. But others claimed that it was a needed adjustment that would ultimately be fine. Now a new detailed breakdown of the FDA’s deeming rule has concluded that these rules are indeed likely to cause a massive disruption in the growing industry. Written by Lauren H. Greenberg and published in the latest issue of the Brooklyn Law Review, the piece is called The “Deeming Rule”: The FDA’s Destruction of the Vaping Industry.

In it, Ms. Greenberg makes the very strong case that not only are the tobacco deeming rules unfairly applied to vaping, but this decision will almost certainly lead to the end of the independent vaping industry as we know it. The implementation of the deeming rules was postponed by four years, but this only delays the inevitable. According to the article, If the deeming rules are allowed to be fully enforced, countless small businesses will close their doors for good.

What Is The Deeming Rule?

The Deeming Rule is an amendment to the 2009 Family Smoking Prevention and Tobacco Control Act. It essentially allowed the FDA’s regulating authority over tobacco products to be applied to e-cigarettes. This was because they legally designated vaporizers as just another tobacco product. The Deeming Rule requires that the sale, distribution, and advertising of any “tobacco products” be approved by the FDA before being legally allowed on the market. The FDA was able to pass such strict regulatory powers based on the risk posed to the health of the general public.

Once the law was passed, it required any new products to secure a Pre-Market Tobacco Application before being sold. More time was given for products that had already been on the market before the law was passed. The original date was set for August 8th, 2018, until last May when the new FDA Commissioner delayed their implementation until 2022. While many in the vaping community were happy with this stay of execution, others saw it as a simple diversion. The fact remains that once the deeming rule is fully enforced, the independent vaping industry in America will be changed forever.

Impact On Vaping Industry

Ms. Greenberg sums the whole issue up very well when she said, “E-cigarettes provide a reduced-risk alternative for cigarette-smokers that should not be regulated in the same manner as traditional tobacco cigarettes. The FDA reached beyond its scope of authority in passing the Deeming Rule, including a broad variety of what it defines as “tobacco products” to be heavily regulated, amounting to a burden threatening to send local shops out of business.” Indeed, the deeming rules present an unfair set of regulations, for what amounts to little more than no reason at all. Individuals ranging from beginning vapers to tobacco control experts understand that vaping and smoking are fundamentally not the same process. The distinction is even more apparent when you realize that e-cigarettes were only invented as a means of helping smokers quit. Therefore, regulating the vaping industry with the same set of rules as Big Tobacco is not only unfair but entirely unjust.


One significant portion of the problem that is less obvious to casual observers is the golden opportunity granted to Big Tobacco by the implementation of the deeming rule. Big Tobacco companies like Philip Morris International have been showing clear signs that they see the writing on the wall for the tobacco industry. PMI has even gone as far as to explicitly say that they’re planning for a future without selling any traditional cigarettes at all. That’s why these companies are currently developing and market testing their own brand of smokeless products. It isn’t just Philip Morris either, all of the largest tobacco companies either already have or are set to release smoke-free devices in the near future.

This should make it clear to anyone that Big Tobacco knows traditional cigarettes are going extinct, so they’re looking to steal as much of the vaping market share as possible. That’s another critical reason why allowing e-cigarette manufacturers to be regulated with the same level of scrutiny as massive Big Tobacco conglomerates is essentially a death sentence for the independent vaping industry. These companies are much more adept at navigating the mountains of red tape and fees that go along with securing a Pre-Market Tobacco Application. So the real question is why does the FDA want to give a clear and obvious advantage to the same companies that have knowingly profited off the death of their customers for the last 70 years?

Do you think it’s fair for vaping to be regulated like smoking? What would be a fair compromise in your opinion? Do you agree that regulations such as the deeming rule are giving a clear advantage to Big Tobacco companies? Let us know what you think in the comments, and don’t forget to check back here or join our Facebook and Twitter communities for more news and articles.

Jimmy, lover, blogger, vaper and ex-smoker. I’ve been blogging about and supporting Vaping since 2009. They changed my life and I think history will show them as one of the most significant public health invention of the 21st century.

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6 Responses

  1. Vista Vapors Inc says:

    The deeming rule is definitely an overstepping of the FDA’s bounds since they are granted authority over tobacco products and not just anything with nicotine in it. I believe that vaping should be regulated but by people who understand both the products and the industry itself.

  2. Daniel Bragg says:

    The FDA deeming rule is nothing more than a tool to kill the vaping industry as we know it , and basically hand it over to the tobacco companies. the very same ones who made tobacco exponentially more dangerous and addictive with added chemicals , killing millions in the process are now being given control of the vaping industry. The FDA is the crooked government tool, by which they will gain this market. When will our government ever get a backbone and stand up for the people equally, rather than allowing themselves to be pimped out to the highest bidder. Bunch of spineless mindless, dollar worshipping idiots, would send thier own mother to the gas Chamber if the price was right.

  3. Frank Scherr says:

    The ‘Deeming Rules’ will DEFINITELY be the end of the independent vaping industry. There’s probably no single, or group of, vaping manufacturers that can truly afford to comply with the PMTAs; therefor, vaping will be controlled, and priced, by BIG TOBACCO. The FDA is NOT an impartial Government Regulatory Agency – the FDA’s FINANCIAL SUPPORT comes DIRECTLY from the PMTA fees it assesses BIG TOBACCO – fees that ONLY BIG TOBACCO CAN AFFORD!!

  4. William says:

    The vaping community has regulated it’s self so far, but there should be some sort of Regulation to ensure the safety of the juice manufacturing and packaging. I do not believe that it is the government responsibility. There are no active ingredients, so no otc form needs to be filled with the FDA. Maybe the community should create it’s own quality assurance.

  5. Lynn says:

    It’s past time for ropes and pitchforks to be used on these draconian tyrants. Why do we keep bending over for their ridiculous “rules and regulations”?? It’s obvious they have an agenda here, and it’s NOT for our good or well being!

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