2 New State Laws: Opportunities and Obstacles

Illinois and Oregon have just passed two new state laws that may cause unprecedented disruption in vape industry regulations. But what do these two new state laws say? What do they mean for the vaping industry? And what opportunities could they bring?

The Illinois Law

The Illinois state law we’re discussing has been labeled the Preventing Youth Vaping Act. It covers any device that uses a battery or other mechanism to heat a solution to produce vapor intended for inhalation, a cartridge or container of a vape solution, and any substance with and without nicotine intended for use with said device.

The Preventing Youth Vaping Act makes it so that any vape device required to have premarket authorization (PMTA) from the FDA does not have a PMTA order in effect, it is then considered an adulterated product. In other words, new vape product launches in the state of Illinois must be premarket authorized before launching to market to avoid fines and other legal implications.

However:

The law does not cover products sold before August 8th, 2016 with PMTAs submitted before September 9th, 2020. But this does not apply to products with PMTAs that have been refused by the FDA or those that received marketing denial orders (MDOs). Products with those conditions would also be considered adulterated.

On a positive note:

It serves us to remember that the act only applies to products with a PMTA requirement. So it looks like non-tobacco products are not covered by this part of the legislation.

In other words:

Cannabis and tobacco free nicotine (TFN) vape products are not considered adulterated goods in Illinois, even if they do not have authorized PMTAs.

The Oregon Law

On the same date, January 1st, 2022, the state of Oregon has passed another legislation. In this case, one that prohibits the shipment of vape delivery systems to end consumers.

In other words:

Direct to consumer sales are prohibited in Oregon, including online sales. But the way the law is versed is “inhalant delivery systems”, which is defined by the legislation as “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.”

On that note:

In a similar way to the new state law imposed in Illinois, the new legislation in Oregon would not appear to prohibit DTC sales of non-nicotine, closed-system products.

That said:

Synthetic nicotine ENDS devices like pods, carts, and disposables do not appear to fall under the term “inhalant delivery systems”.