The Vaping Market Is Igniting
| Author | Daniel S. Wittenberg |
| Pages | 26-27 |
Published in Litigation News Volume 45, Number 3, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any
form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.
26 | SECTION OF LITIGATIO N
BUSINESS OF LAW
he multibillion-dol lar vaping market has taken
a hit. The recent outbrea k of vaping-related ill-
nesses is sure to ig nite litigation. The Centers for
Disease Control (CD C) promptly initiated an investi-
gation preliminarily identifying an additive ingredi-
ent associated wit h products containing tetrahydro cannabinol
(THC) as a common t hread. The reaction by states to ban vap -
ing products in resp onse to the issue was swift. Addition ally,
the deadline for e -cigarette market approval submissions to t he
Food and Drug Adm inistration (FDA) was recently moved up
by two years. Vaping products a re at the center of a storm, a nd
lawyers are busy.
Vaping 101
Vaping is the act of inhali ng aerosolized liquid from an elec-
tronic battery-powered devic e. Electronic cigarettes— or
e-cigaret tes—are also calle d vapes, e-hookahs, vape pens, and
electronic nic otine delivery systems (EN DS). ENDS are non-
combustible tobacco product s. The liquid in vaping products
can contain n icotine, THC, can nabinoid (CBD) oils, and addi-
tives like propylene glycol, vege table glycerin, and varying com -
positions of avorings. T HC is the psychoactive compound of
marijuana that pro duces the “high.”
E-cigare ttes hit the U.S. market over a decade a go and
were promoted as a safer alter native to traditional tobacco
cigarettes . They gained sig nicant traction over the last
few years when USB -sized vaporizers were introduce d.
Corresponding ly, a spike in vaping occurre d, especially
among teens and young adu lts. Until then, t his was a segment
of the population, accord ing to the CDC, that had been usi ng
fewer tobacco products .
By the Numbe rs
The number of vapers has b een increasing rapidly, from about
7 million in 2011 to 41 million i n 2018. Market research
group Euromonitor esti mates that the number of adults who
vape will reach al most 55 million by 2021. The globa l mar-
ket is estimated to b e worth $19.3 billion, up from $6 .9 bil-
lion just ve years ago. Accord ing to the Business Research
Group, the market is exp ected to grow to $29.39 billion
through 2022 . The United States, United Ki ngdom, and
France are the bigge st markets. Vapers in these three coun-
tries spent more tha n $10 billion on smokeless tobacco and
vaping products in 2018.
FDA Regulation
In 2009, the FDA acqui red regulatory oversig ht of vaping
products when the Fam ily Smoking Prevent ion and Tobacco
Control Act beca me law and classied them as tobacco
products. The F DA did not publish proposed rule s to begin
formally regu lating EN DS until 2014. The proposed r ules,
which were adopted in May of 2016 and effec tive in August
of that year, required E NDS to undergo a “premarket”
review process for Ne w Tobacco Products, and requi red a
prominent warni ng on packaging stating that the produc ts
contain the addic tive chemical nicotine.
In 2017, the time allowed for submission of application s
was extended from th ree to six years from the 2016 effective
date of the rule. However, in Ju ly 2019, a federal judge moved
that deadline back f rom 2022 to May 11, 2020. Reaction from
the industry was m ixed. San Francisco– based JUUL Labs,
Inc., said it was support ive of the application process and had
been preparing re search on its products and how they are use d
by smokers. “We’re condent in the content a nd quality of the
materials we wil l submit with our application,” said spokes-
woman Lindsay And rews in an interview with Blo omberg.
However, Fontem US Inc, the m arketer of blu e-cigarettes,
voiced concern about the pushe d-up deadline. “We are disap-
pointed with the cou rt’s decision imposing an accelerated t ime-
line on the premarke t review process. This wil l undoubtedly
The Vaping Market Is Igniting
By Daniel S. Witte nberg, Litigation News Associate Editor
© Zeferli via iStock / G etty Images Plu s
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