By Michelle Baldwin Skaggs
General Counsel, Vapor Association of Indiana
Among the new laws taking effect in Indiana this weekend is legislation making Indiana among the first in the nation to require e-liquids for open-system vaping devices to meet packaging and production requirements intended to protect consumers. It brings common-sense regulation to an industry that had grown addicted to the intoxicating mix of near total freedom, rapid growth and profitability.
Is this regulation necessary? So far this year, 770 cases of e-liquid exposure have been reported to poison control centers. The Center for Injury Research and Policy reports the number of children poisoned by nicotine in e-liquids increased 1,500% between 2013 and 2015. Worse yet, it has documented the first death involving e-liquids as a 2-year-old from New York — a victim of nicotine overdose.
Hoosier lawmakers addressed these risks by crafting legislation that includes standards for child-safe packaging and clean room production. Lawmakers took action only after a series of hearings that revealed just how haphazard the production of e-liquids had become. Video of a vape shop employee mixing e-liquids while enjoying a fast-food lunch revealed the shocking lack of basic cleanliness consumers assume is required in production of ingestible products. Laboratory testing of e-liquids revealed nicotine levels inconsistent with their labeling. The lack of regulation had created a “wild west” environment, leaving consumers no idea what is in the bottle, where it came from or who would be responsible for any harm it may cause.
The result is a law requiring e-liquids sold in Indiana to be manufactured in facilities approved by the Indiana Alcohol & Tobacco Commission. The loudest voices of protest against the new law are from those who thrived in a fast-growing, “anything goes” marketplace.
They complain that the law’s requirements on security and production monitoring restrict competition by being overly specific, artificially restricting an e-liquid producer’s ability to comply. Indiana’s new law requires manufacturers to partner with a qualified independent security provider as a condition of receiving an operating permit. Because the state of Indiana does not license or regulate security firms, the law includes security provider standards. Without those standards, anyone with a clipboard and cell phone could claim to be a security provider.
The Vapor Association of Indiana is a non-profit, membership-supported association that stands for the safe sale and manufacture of e-liquids to protect Hoosiers from adulterated products made in dirty rooms with dangerous ingredients, such as spice, lead, marijuana, methamphetamine, and heroin. We advocate for public health measures to promote the ethical and responsible manufacture and distribution of safe e-liquid. We commend the manufacturers that have earned state permits to produce e-liquids in approved facilities with proper labeling, batch tracking, and child-proof containers. These manufacturers are producing a variety of e-liquid flavors and formulations to replace those from unapproved sources, which can no longer be sold when the new law takes effect.
Changes in laws that regulate commerce are frequently subject to criticism. Hoosier lawmakers have the power to make adjustments, and several have indicated a willingness to review the new statute. We welcome this review and will contribute conscientiously, confident that real-world experience with the effectiveness of the new law will guide them to practical amendments as needed.
Our greater concern, and one that should capture the attention of any vapor user, is the announced plans for federal regulation of e-liquids. As proposed, the cost to win FDA approval for each e-liquid product is estimated to be a minimum of $1 million — per flavor or per mixture. Even the most vocal critics of Indiana’s law see this as a far greater threat to availability and price of e-liquids.