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The FDA’s Deeming Rule Is Killing The Independent Vaping Industry According To New Review The FDA’s Deeming Rule Is Killing The Independent Vaping Industry According To New Review

A review published in the Brooklyn Law Review concluded that the deeming rule is extremely detrimental to the overall value of vaping

There are many hurdles left for vaping to overcome before it can reach its potential as a game-changing smoking cessation tool. But there are few more pressing than the impending FDA deeming rule. This rule was implemented in 2016, much to the chagrin of vapers across the country. Even though some suggested it could help legitimize vaping, it appears this was only wishful thinking. A brand new analysis of the deeming rule and its history was recently published, making the case that left unchanged, the law will likely lead to the end of the vaping industry as we know it.

The article is called The “Deeming Rule”: The FDA’s Destruction of the Vaping Industry, and it was written by Lauren H. Greenberg detailing the deeming rule’s timeline. She presents a sound argument that the deeming rule is unfairly applied to vaping. But more importantly, the disadvantage placed on vaping businesses will ultimately lead to the end of the independently owned vaping industry we currently enjoy. She believes that even last years four-year delay will do precious little to save small businesses when the deeming rule is eventually enforced.

Deeming Rule Timeline

The Obama era Family Smoking Prevention and Tobacco Control Act, known more commonly as just the Tobacco Control Act (TCA), was enacted to help federal agencies better police the tobacco products sold on the market. In 2016, an amendment was made to the TCA that deemed e-cigarettes the same as traditional cigarettes. This officially gave the FDA authority to require that any vaporizer sold on the market must undergo rigorous testing. They simply equated the dangers of vaping with the dangers of smoking, in spite of the fact this has been proven patently untrue.

The amendment itself required that any new products obtain a Pre-Market Tobacco Application (PMTA). Devices that had already been on the market were given until August 8th, 2018 to earn a PMTA, but many saw this as simply not enough time. Then last May, the new FDA commissioner, Dr. Scott Gottlieb, announced that they would be delaying the implementation of the deeming rule for four years, until 2022. Many vapers were happy with the delay, but others still worried about what would happen after the four years was up. Indeed, the delay did nothing to change the reasons why the deeming rule poses such a significant danger to the independent vaping industry across the country.

What It Means For Vaping Industry

The real issue for the vaping industry was summed up perfectly by the article when it 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.”

Ultimately the deeming rule gives next to no reason why the same harsh regulations that regulate tobacco should also control vapor products. Smoke and vapor are simply not the same, and to treat them as such is not only misleading but potentially very detrimental to society at large. Modern vaping was invented as a means of ending the smoking epidemic, so what does it say about our policy when we essentially equate it with the thing it’s designed to stop. By treating vapor and smoke as the same, the FDA is, in essence, managing independently owned vaping companies the same as multinational Big Tobacco conglomerates.


A major implication of the deeming rule that isn’t as clear-cut to the public is the huge advantage handed to Big Tobacco. Philip Morris International and others like British American Tobacco have started to show signs that they’re preparing for a life without traditional cigarettes altogether. PMI has on several occasions said explicitly that they’re aiming to stop selling combustible cigarettes in the somewhat near future. They’re not planning on going out of business though, which is why their only viable option is stealing as much of the smokeless market as possible.

It’s critical that vaping isn’t regulated by the same strict standards as Big Tobacco. These much smaller companies are far less able to handle the excessive load of red tape and fees that go along with meeting tobacco control standards. What’s more, Big Tobacco companies are very used to dealing with these rules and regulations, not to mention they’ve got seemingly limitless amounts of money to help weather the storm. For any established Big Tobacco company, obtaining the required PMTA is a minor annoyance, whereas, for a small vaping company, it could easily be a death sentence. That leaves a serious question that needs to be answered. Why should the FDA give a massive advantage, and second chance at sustainability to Big Tobacco when they’ve been knowingly making money off the death and disease caused by their products for nearly 80 years? That’s a question that seriously needs answering before we destroy the vaping industry as it currently is.

Should vaping and smoking be regulated by the same set of rules? How can we find a middle ground between sound regulation and overstepping bounds? Do you believe that Big Tobacco is gaining a direct benefit from the deeming rule? 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.

Dustin Erickson

Dustin Erickson - ECR.net Editor

Dustin can lay claim as one the first e-cigarette reviewers on the internet. Back in the summer of 2009 he set out on a mission to spread the word about e-cigs with this very site. Nearly 2.5 Million visitors, 1,700 Reviews collected and 5 years later, he’s still as passionate as ever and one of the leading Vaping advocates online.