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Feb. 22, 2020

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Clark County vaping industry bracing for state, federal ‘extinction’ events

State’s ban on flavored vape products is over, but reprieve for shop owners may only be temporary

By , Columbian business reporter
6 Photos
Mike Roth, manager at Fatboy Vapors on Chkalov Drive, tells customers on Friday that he will have flavored vape juice in stock today. (Nathan Howard/The Columbian) (Photos by Nathan Howard/The Columbian)
Mike Roth, manager at Fatboy Vapors on Chkalov Drive, tells customers on Friday that he will have flavored vape juice in stock today. (Nathan Howard/The Columbian) (Photos by Nathan Howard/The Columbian) Photo Gallery

Washington’s temporary ban on flavored nicotine vapor products is over as of this morning, and local vape shops are preparing for a surge in customer traffic this weekend following months of severe revenue decline. It should be good news — but the shop owners aren’t feeling very celebratory.

“There doesn’t seem to be a future for the industry in the state of Washington,” said Steven Berry, co-owner of the Vancouver vape shop chain Hawaiian Vapor.

The gloomy outlook is prompted by a bill working its way through the Legislature that would create new regulations for vape shops. The original version of the bill would have made the flavored vape ban permanent, but a revised version adopted this week reverses that plan.

Again, that should be good news for the industry, but multiple shop owners who spoke to The Columbian said the new bill would still be a death sentence. The key issue is a section of the bill that would create new restrictions on the allowable sizes of vape-liquid containers. There would be a gap between when the emergency ban expires and the new bill goes into effect, but once that window is over, the shop owners said the bottle-size rules would be even more damaging than the flavor ban.

“This bill is an extinction-level event for the industry,” said Shaun D’Sylva, who owns Fatboy Vapors, a manufacturing and retail company that operates multiple vape shops in Clark County.

Flavor ban

Gov. Jay Inslee instituted the temporary flavor ban in October amid an outbreak of a novel vaping-related lung illness. Several states enacted similar measures around the same time, and the Trump administration briefly considered a federal ban, although the plan didn’t move forward.

The Centers for Disease Control linked the lung illness to vitamin E acetate, a substance sometimes used as a cutting agent in black-market vape liquids, although not typically used in legal flavored products. State officials also cited skyrocketing rates of youth vaping as a justification for the flavor ban.

The emergency ban was put in place on Oct. 10, and it lasted 120 days. It set up the Legislature to take long-term action during the 2020 session.

Senate Bill 6254 was introduced in January and originally would have continued the prohibition, but on Monday the Senate Health and Long Term Care Committee approved an amendment that replaced the total ban with a rule that restricts flavored liquid sales to customers age 21 and older.

Smaller bottles

The revised bill retains a section from the prior version that states that vapor product liquids containing nicotine may only be sold in refill containers of 10 milliliters or smaller. Disposable products, single-use cartridges and refillable vapor product tanks would be limited to 2 milliliters.

Vape shop owners who spoke to The Columbian said those numbers differ substantially from what is currently on the market.

“The vaping industry has never used 10 (milliliters), ever,” Berry said. “That has never been a thing.”

The average bottle size tends to be 60 to 120 milliliters, he said, and most of his product inventory uses 4 milliliter tanks in the vapor devices, which would also run afoul of the new rules.

Justin Rawlinson, president of Vancouver-based Erupted Vapor, estimated that it would take about six to nine months for manufacturers to make the switch to smaller bottles — assuming they’re interested in switching at all.

“They’d have to take a look at Washington state’s entire market and say, ‘Is it worth it?’ ” he said.

FDA challenges

Speaking as a manufacturer, D’Sylva pointed to an additional obstacle: The Food and Drug Administration. Current federal policy drastically limits manufacturers’ ability to get new vape products approved, he said, and the smaller-sized bottles would almost certainly count as something new.

“The only thing you can do is edit the name,” he said.

The current regulatory environment emerged in 2016, when the FDA finalized a rule that designated electronic nicotine delivery products brought to market since 2007 — meaning basically all vaping devices — as “new” tobacco products that would need to be authorized by the FDA through a process called the Premarket Tobacco Product Application.

Products that were already on the market in 2016 were temporarily grandfathered in, but their manufacturers were still required to apply by August 2022 to seek FDA approval to remain on the market. The application deadline was later moved up to May 12, 2020.

The vaping industry’s product lineup has been essentially frozen since 2016 due to the rule, D’Sylva said, making any new bottle sizes virtually impossible.

The application fees are expensive and beyond the means of most manufacturers, D’Sylva added, and he described the May 12 deadline as an entirely separate impending doom for the vaping industry stacked on top of the potential state bottle restrictions.

But even so, D’Sylva said he and other local industry owners have been lobbying against the proposed Washington bill along with the current FDA requirements, in hopes that the industry can be spared from both “extinction” events.

Industry future

All three vape shop owners voiced frustration with Washington’s flavor ban, arguing that vitamin E acetate was already reported to be the likely cause of the lung illnesses even before Inslee and other governors began issuing flavored vape bans.

They all described the ban as a major blow that has substantially reduced customer traffic and put their stores in danger of being forced to close.

Rawlinson commended the Legislature for trying to reduce teen vaping rates, but argued that even the smaller sizes seemed like a step in the wrong direction because smaller vape products would be easier for students to conceal in schools. Juul pods, for example, are smaller than 2 milliliters.

Still, he said the revised legislative proposal was ultimately a step in the right direction, though not as much as the industry would like to see.

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“Is it the same dampening effect as a flavor ban would be? Certainly not,” he said.

D’Sylva was more pessimistic, although he attributed the bleak outlook primarily to the FDA policy and the impending May application deadline. But the state regulations would be just deadly to the industry if the current bill is enacted, he said.

“The day it goes into law, I’ll be shutting down all my stores in Washington state because there are no products I can sell,” he said.