Can The FDA Actually Ban Online E-Cig Sales?

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No-VapingThis is a more complex question that one might think.  Following this past week’s report that the FDA is mulling over whether or not to ban electronic cigarette sales online, concern about the potential policy grew quickly.

The original report didn’t come from just anywhere — it was in the Wall Street Journal.  So the likelihood that this is fairly more than just rumors and gossip is high.  The FDA has been looking for ways to slow down the e-cig market and they were never shy about saying that online sales were a concern.

But this raises the question: how does the FDA plan to justify a nationwide ban of online e-cig sales?  After all, the FDA was ruled against back in 2009 when it tried to ban the products as untested drug delivery devices.  The ruling essentially said that e-cigs, when marketed without therapeutic and pharmaceutical claims, didn’t fall under the agency’s drug regulation authority.  If e-cigs were to be regulated by the FDA, it would have to be done under its tobacco enforcement powers.

This is a little confusing for a lot of the market.  The ruling didn’t make e-cigs into tobacco products.  It merely said that if the FDA were to regulate them, then it would need to be under their tobacco controls and not under their drug controls.  The FDA still needs to justify why a product, absent tobacco and rapidly proving to be largely benign, needs full blown government regulation as a tobacco product.

That hasn’t happened yet.

In mulling over a ban of online sales, the FDA is suggesting it will keep e-cigs away from minors.  This is a flimsy excuse — and they will have to justify any official action they take against electronic cigarettes.

They haven’t proven that the risk and damage of e-cig use is enough to warrant hefty bans and restrictions, or that kids are getting e-cigs through online means, or that e-cigs should even fall under their jurisdiction.  Currently the unknown is the best defense they have — we don’t know they’re not deadly (although we actually do know this), so we should treat them like they are.

The only real strength these plans have behind them is that — most likely — large, established tobacco companies and the e-cig companies with established brick and mortar store distribution will support online sales bans as a way to hedge out just about all the smaller companies.  They won’t admit that though.  Their public reasoning will probably mirror the FDA’s — do it for the kids.  They’ll probably even suggest that the added safety is worth sacrificing the potential sales because they’re just such noble business people and such.

More than likely, consumer advocacy CASAA and e-cig advocates like Bill Godshall and Michael Siegel will not make the implementation of legislation like this very easy.  The community at large should, and likely will, make its voice heard as well.

In short, let’s not make it easy on them.

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