With all the talk surrounding the FDA’s proposed ban on flavored e-juices, it can be tough to figure out exactly what’s going on. With the huge number of vapers that regularly vape the fruit- and dessert-inspired flavors that are in the FDA’s crosshairs, it’s not surprising that there’s a mix of frustration, concern, and annoyance surrounding the potential changes. As the government releases new information about their plans to move forward, it’s left many vapers wondering – “Are the FDA’s e-cig restrictions legal?”

While some people may assume that as a government agency, the FDA has plenty of power to enact any restrictions they’d like, it might not be that simple. Some of the proposed regulations might just be overstepping the FDA’s legal boundaries, which could give the vape industry an opportunity to fight against the new rules in court.

What are the Proposed FDA Regulations on E-Cigarettes?

The FDA wants to change the sale of e-cigarettes, vape juice, and other products in the following ways:

  • Flavored e-cigarettes and e-liquids (except menthol, mint, and tobacco) cannot be sold by any store that doesn’t have a specifically designated adults-only area.
  • Online retailers will be required to enact new age verification standards, and there will be stricter enforcement of any advertising interpreted as directed towards minors.
  • Menthol cigarettes and flavored cigars will be banned.

Why is the FDA Regulating E-Juice Flavors?

According to the FDA, the driving force behind the new rules for e-cigs has everything to do with fighting underage vaping. It seems that the FDA has decided that teen vaping can be traced to a major catalyst: the wide variety of sweet, fruity, and dessert-inspired e-liquids. The government agency states that vape juice manufacturers create these liquids primarily with teens in mind, and that statistics show that sweet flavor varieties are preferred by teens rather than adults.

Interestingly, surveys show that the majority of adult vapers are actually the ones who prefer sweet flavors, with only 16 percent choosing the menthol, mint, and tobacco options that the FDA argues are more “adult.”

Are the FDA E-Juice Restrictions Legal?

Critics of the FDA’s proposed regulations point to the Family Smoking Prevention and Tobacco Control Act, enacted into law in 2009. This law gave the FDA the legal authority to handle the regulation of tobacco products, but it barred the FDA from “prohibit[ing] the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets.” Technically, the FDA is within those bounds, because the new regulations state that all types of retailers can see flavored e-cigs and juices, as long as they designate an adults-only section – yet it’s that condition that may be toeing the legal line.

For many retailers, such as convenience stores, gas stations, and other businesses that regularly admit minors, building a completely separates, adults-only section isn’t feasible at all. Some businesses, such as vape shops that already restrict entrance to 18 and over, will have little issue with the new rule, but for others it will be impossible to comply. The Tobacco Control Act clearly states that the FDA cannot discriminate against certain types of retailers, but to many people, the new regulations seem to come down more severely on a particular kind of retail outlet. For legal experts working the vape industry, there’s serious potential for future litigation fighting back based on these grounds.

Be sure to check back with South Beach Smoke for all the updates on the FDA’s proposed regulations, as well as all the other vape news you want to know about.