The VTA’s second Vape and the FDA event got attendees up to date on the vapor industry before taking the fight to legislators firsthand.
By Timothy S. Donahue
“Was it us?” It is a question that may have been asked by attendees to the Vapor Technology Association’s (VTA) event, Vape and the FDA 2: Surviving & Thriving in a New Regime for Vapor, held in Washington, D.C., in mid-July. It was a week later, after all, that the U.S. Food and Drug Administration (FDA) announced it would delay the doomsday deadline for premarket tobacco product applications (PMTAs), adding an additional four years (also see “Breathing Room,” page 12).
After getting the most up-to-date industry information on day one, attendees spent day two getting in front of members of both the United States Senate and House of Representatives to promote the reduced-risk benefits that vapor products offer over combustible cigarettes. The first day’s session was held in the Trump International Hotel, where more than 150 attendees from 23 states heard presentations from 26 different speakers. Subjects covered a broad range of industry challenges and strategies, including legislative updates, using the media to send a clear message, regulation and the future of the vapor industry.
The VTA has been one of the most outspoken and impactful vapor industry trade associations. The organization has been instrumental in numerous legislative successes concerning vapor, including the repeal of the state of Indiana’s unconstitutional Vapor Pens and E-Liquid Act. Opening the event, Tony Abboud, executive director of the VTA, told attendees that if they “don’t take the time to advocate on behalf of our industry, then things will happen to us that you cannot allow to happen. The growth and vibrancy that this industry promises will be squashed.”
One of the conference’s most anticipated speakers was Senator Ron Johnson, chairman of the Committee on Homeland Security and Governmental Affairs. Abboud called Johnson a champion of the vapor industry. “He is a champion for the issues that concern us,” said Abboud. “We owe him a deep debt of gratitude because he does speak up and talk about what is important and why it’s important to protect this industry.”
Johnson, a longtime vapor supporter, is well-known in vapor circles for sending three separate letters to the commissioner of the FDA, demanding that the agency produce evidence and adequate documentation for their regulatory overreach in implementing deeming regulations. Johnson’s speech did not disappoint. “How many of you here think the federal government is efficient and effective?” Johnson asked. “I’m not seeing any hands going up.”
Johnson told a story about how he had met Christian Berkey, founder of Johnson Creek Enterprises, the first large-scale e-liquid manufacturer in the U.S., in their home state of Wisconsin. Berkey explained to Johnson how the deeming rule was killing the industry and his business. Johnson looked into the deeming rule and found he agreed with Berkey. “It is wrong that the federal government is doing this to a business in a free market, capitalist system,” said Johnson. “It’s just simply wrong. When you’re one of those businesses being snuffed out [by overregulation and big government] you have got to come to Washington. You have to make your members of Congress aware of the situation. This is what this industry has done, and you have to keep doing it until you win.”
The vaping industry is a single-issue voting bloc, according to Johnson. There is nothing wrong with that, he said, adding that what is even more important is being a single-issue voter on an issue larger than vaping. “It’s what caused our fathers to risk their lives. The issue I want these voters to vote on is a simple word but a powerful concept: freedom,” said Johnson. “That is what is really being snuffed out. It’s not just your vaping industry, but our freedoms are being snuffed out every day by this $5 trillion beast we call the federal government. Please never forget what this all about.”
Changing or repealing and passing new legislation is going to be tough, but Johnson said that President Donald J. Trump is sympathetic to the private sector and also appointed new FDA Commissioner Scott Gottlieb. It was Gottlieb who listened to the pleas of the vapor industry, as well as read letters from Johnson and other members of Congress (and later postponed PMTAs). Johnson said the industry could do even more, however, if they could find a way to come together. “Again, remember passing legislation is tough. It would be a little easier if you could all get together, not have little splinter groups, but all get together and cooperate,” Johnson said emphatically.
After Johnson’s speech, there was an aggressive morning agenda covering numerous industry topics. For example, Kristi Remington, of West Front Strategies, presented on legislative pathways in Congress and current vapor legislation, explaining the different vapor bills pending and why certain bills move while others do not. Also, Chris Howard, of E-Alternative Solutions, gave a presentation on avoiding marketing and selling electronic nicotine-delivery systems to youth.
Another conference highlight was when Brittani Cushman, of Turning Point Brands, led a panel of industry experts including Julie Woessner of the Consumer Advocates for Smoke-free Alternatives Association (CASAA), George Cassels-Smith of eLiquiTech, Janet Aho of Mane, and Marc Scheineson of Alston & Bird on an in-depth discussion on flavors. Attendees were also provided insights from FDA-experienced attorneys on what to expect when the FDA comes to inspect your business and what the changing deadlines in the deeming rule mean to businesses.
The afternoon was carved into a dual track: one for manufacturer compliance with PMTAs and one for retailers and state vapor associations to discuss growth strategies. Alex Clark, executive director of CASAA; Matt Milby, president of the Maryland Vapor Alliance; Dimitris Agrafiotis, executive director of the Tennessee Smoke Free Association; Amy Lane, president of the Indiana Smoke-Free Alliance; Jay Taylor, president of the Virginia Smoke Free Association; James Jarvis, president of the Ohio Vapor Trade Association; and Cynthia Cabrera of The Cating Group all spoke on the strategies for state organization growth that have been effective and ineffective over the years. Further, Clark, Abboud and Jarvis laid out a new coordinated strategy for organizing and fighting back at the local level against anti-vapor ordinances.
Then Dr. Sally Satel, the W.H. Brady Fellow at the American Enterprise Institute, give a thoughtful defense of tobacco harm reduction and vapor products. She was followed by Jake Butcher, VTA state affairs manager, who gave attendees a summary of the successes that the VTA and its affiliated state vapor associations have enjoyed at the state level. Butcher also lead a panel discussion on vapor tax policy that included state vapor lobbyists from some of the key states confronting hostile laws this past session.
During the second day of the event, attendees were paired up according to their home state (or another state if they desired) with team leaders who then took the different groups to visit various congressmen from those states. Organized by the VTA’s lobbying team, West Front Strategies, vapor industry companies’ leaders and consumer advocates had more than 90 meetings with legislators. More than 100 vape shop owners, state vapor association leaders, manufacturers, wholesalers, distributors and consumers took to Capitol Hill. The main goal was to ask members of Congress to assist the VTA in halting or dramatically delaying the FDA’s deeming rule. “We explained that the rule, which had been hastily implemented, does nothing to address product standards or consumer safety issues and is so overly burdensome that it is tantamount to a ban on these new and innovative vapor products,” said Abboud.
VTA members also pushed for passage of H.R. 1136 (the FDA Deeming Authority Clarification Act of 2017) and that members of Congress send a letter to Gottlieb encouraging him to delay by at least two years the continued implementation of the deeming regulations. “We were thrilled that many members of Congress agreed to send the letter or reach out to Commissioner Gottlieb right away and that they followed through on that promise,” said Abboud.
Then it happened. On July 28, Gottlieb made a major policy speech in which he granted one of the main points of relief the VTA had been seeking: a four-year extension of the PMTA deadlines. “These successes required us to organize on-the-ground efforts in [Washington] D.C. and deploy resources in many states through numerous channels,” said Abboud. “We are incredibly pleased with these recent events and are grateful for all those who worked with us, but you need to know that VTA is just getting started.” Maybe it was them.