It’s a new year, and with the new year comes new laws that are to take effect, and for the cannabis and vape industry - these laws may not be as promising for the future of the industry. We’ve seen several states take a stance against vaping specifically, and added to the list are Illinois and Oregon. This article will cover everything you need to know about what this means for the vape community in these states moving forward.

Illinois

As of January 1st, 2022, the state of Illinois has passed a new bill, namely Illinois Senate Bill 00512 - The “Preventing Youth Vaping Act” which was sponsored by Sen. Julie Morrison and Rep. Bob Morgan. This bill is as the name suggests; a bill that creates additional restrictions and regulations on e-cigarettes, aiming to prevent vaping by children. So, what does this act mean for Illinois?

First of all, the law defines an e-cigarette as;

• A device using a battery or other mechanism to heat a solution, resulting in vapor for inhalation.
• Any container of a substance that is intended to be used in the device or used to refill the device.
• Any substance that is intended for use in the device.

According to the Illinois attorney general, the act is intended to do the following;

“Address the epidemic levels of youth e-cigarette usage by prohibiting companies from marketing products to minors.”

The state has clearly stated its interest and belief in encouraging the youth to live vape-free. While vaping is a controversial topic in regards to health, the state has a strong stance in stepping towards keeping these products out of the hands of anyone younger than 21 years old. This bill, however, also poses a challenge to the industry by limiting companies from directing their advertising and marketing.

While most people may stand by the age-restricted purposes of this bill, this legislative change poses nuanced difficulties to companies that offer these products and results in fines of up to $25,000 as well as a 1-3 year prison sentence if found guilty. The bill complicates marketing these products by stating the following rules:

1. Companies can not market vape products as modified risk tobacco products
2. Companies can not market a vape product as providing smoking cessation benefits unless approved by the FDA.
3. Companies can not market vape products in a way that appeals to or encourages any person under the age of 21 to use them.

As online tobacco and e-cigarette sales continue to grow, the new law and restrictions as listed above seek to prevent minors from purchasing e-cigarettes by requiring online retailers to take steps to ensure that purchasers are at least 21 years old. The state goes as far as urging the FDA to ban flavored tobacco products and to strengthen e-cigarette guidance by prioritizing enforcement actions against flavored e-cigarettes.

The only exception currently stands for the following;

“Electronic 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”

e-cigarettes that utilize synthetic (tobacco-free) nicotine or CBD-containing e-cigarettes, for example, that arguably are not tobacco products under federal law, would not be considered adulterated in Illinois for not having authorized PMTAs.

Oregon

As of January 1st, 2022, the state of Oregon passed House Bill 2261 which prohibits remote sales of inhalant delivery systems. This new legislation prevents any businesses involved in selling vape products from shipping or mailing any products that may have been purchased online or by other distant means. This means that the only sales permitted are in-person sales.

These restrictions do not, however, apply to freight forwarders or motor carriers. Apart from that exception, no retailers or businesses may sell smokable tobacco products unless the purchase was made face-to-face.

‘Inhalation delivery systems’ refers to anything that is one of the following;

“A device that can be used to deliver nicotine in the form of a vapor or aerosol to a person inhaling from the device; or a component of a device described in this paragraph or a substance in any form sold for the purpose of being vaporized or aerosolized by a device described in this paragraph, whether the component or substance is sold separately or is not sold separately.”

According to that description, the following products fall into the Oregon HB 2261 Shipment ban:

• Bottled e-liquid (with or without nicotine)
• Closed-system ENDS (e.g. pod/cartridge or disposables) pre-filled with non-nicotine and nicotine-containing e-liquids
• Open-system devices
• Open-system/Open-tank ENDS device

This means that the legislation appears to restrict the DTC sale of most types of vapor products.

The implementation of this bill was put forward due to the FDA reporting that 3.6 million middle and high school students were current users of e-cigarettes In 2020. While the FDA finalized a rule in 2016 that included ENDS in the definition of a tobacco product, the majority of regulation of these products is left to the states. Supposedly, despite the current regulations that were passed in 2017 - the state insisted that the regulations still make it relatively easy for minors to obtain products online.

A device is considered adulterated if:

1. It consists of any poisonous, deleterious or filthy substance that may render injuries to health.
2. It is held or packaged in containers composed of any poisonous or deleterious substance.

Considering these new legislations, it is clear that further restrictions are being imposed on the states around the U.S. and pose challenges to the vapor industry. While these new bills are proposed to provide a safer environment for minors, it should be asked whether this is a step forward or a step backward in the industry.

‍