Cleaning Up the Vape IndustryBy Angela Holland, CAE
In recent days, many of you have received notifications from your branded fuel supplier regarding the sale of illicit or illegal vapes. This has been an ongoing problem for several years with NO enforcement. For at least two consecutive years, GACS supported, and GACS members testified in support of a Georgia Vape Registry. However, the bills that were introduced were stalled. GACS is not the only association supportive of cleaning up the vape industry. NACS submitted a comment letter to the Office of the United States Trade Representative (USTR) focused on illicit nicotine products produced in China and shipped to the United States in violation of U.S. law. In late April, Georgia Attorney General Chris Carr joined a coalition of 13 attorneys general in sending a letter to credit card companies urging them to stop the sale of illegal vape products facilitated through their payment card networks, stating that illegal vapes, mostly manufactured in China, generate over $11 billion in annual retail sales. The AG’s press release further states, “There is a strong precedent for public-private cooperation in this area. In 2005, state attorneys general and the Bureau of Alcohol, Tobacco, Firearms, and Explosives successfully worked with payment card networks to stop the illegal sale of cigarettes over the internet. The states urge the credit card companies to identify and remove merchants that sell illicit vapes from their networks and to publicize what steps they have taken so far to combat this problem.” 
Under pressure from the Trump administration, on May 5th, the Food and Drug Administration (FDA) authorized the marketing of four Glas electronic nicotine delivery systems (ENDS), including the first fruit-flavored vapes. The authorized pods include Classic Menthol, Fresh Menthol, Gold (mango), and Sapphire (blueberry). In addition to these four products, there are 41 more, including Juul, Logic, NJOY, and Vuse. The full list of FDA-approved vape products can be viewed on the FDA’s Authorization Page.
The FDA began regulating vapes in 2016 when the deeming rule took effect. However, the steps to limit products in the marketplace have been slim to none (a few letters to retailers and a few port seizures), allowing vape stores/smoke shops to pop up all over the country. Now, to help with the problem, they have asked the credit card companies to police their customers. This has provoked at least one branded fuel supplier to issue warning notices to its customers. I think it is prudent to mention the letter from the attorneys general also stated, “vapes/tobacco shops demonstrated the highest proportion (74.5%), followed by non-chain (independent) convenience stores (38.9%), liquor stores (28.6%), and chain convenience stores (23.1%).” Additionally, the letter stated. “We look forward to learning more about what steps you (credit card companies) have taken so far to combat this problem, including the procedures you use to identify and respond to merchants engaged in illegal e-cigarette sales.” And quite frankly, I believe the convenience store industry should be asking the question, what has been done to address the channel selling 74.5%, or the highest proportion of these products? One of the questions I received this week was, “What’s the guidance on this for Georgia law?” None, federal law trumps state law in almost every situation and applies here as well. An article published by NACS on May 21st indicates the FDA will soon publish and maintain a publicly available list of manufacturers and their products that it does not intend to prioritize enforcement against. Retailers should look for this list, as it should provide clearer guidance than what has previously been available. (When it becomes available, I will certainly share it with you.) In the meantime, if you have any questions, please reach out. 
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