Two New State Laws Could Disrupt the Vapor Industry

CANNANNEW REPORT

By Azim Chowdhury & Taylor D. Johnson on December 28, 2021 On January 1, 2022, two new state laws will become effective in Illinois and Oregon and could cause significant disruption to the vapor industry. We provide background on the legislation and discuss the potential implications for the sales of vapor products in the respective states. Illinois On January 1, 2022, SB 0512, The Preventing Youth Vaping Act, will take effect in Illinois. Under this new law, an electronic cigarette is broadly defined as any device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation; any cartridge or container of a solution or substance intended to be used with or in the device or to refill the device; or any solution or substance, whether or not it contains nicotine, intended for use in the device Critically, SB 0512 considers an electronic cigarette to be adulterated (and prohibited for sale) if, “it is required by 21 U.S.C. 387j(a) to have premarket review and does not have an order in effect under 21 U.S.C. 387j(c)(1)(A)(i) or is in violation of an order under 21 U.S.C. 387j(c)(1)(A).” In other words, if an e-cigarette is required by the federal Family Smoking Prevention and Tobacco Control Act (21 U.S.C. 387j(a)) to have premarket authorization from the U.S. Food and Drug Administration and does not have a Premarket Tobacco Product Application (PMTA) order in effect (or is in violation of such an order), it would be considered adulterated under the Illinois law.[i] Although the law exempts e-cigarettes “first sold prior to August 8, 2016 and for which a premarket tobacco product application was submitted to the U.S. Food and Drug Administration by September 9, 2020” from the adulteration definition, products that are subject to timely submitted PMTAs that FDA has either…

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