State of Vape: What’s Next For Vape?

The 2020 elections are (mostly) done, and that means big implications for the vape industry. While you should still be taking action to preserve your access to flavors, you should also be mindful of what lies next for vape. In this edition of State of Vape, the eJuices.com team investigates what possibly lies ahead.

At The Ballot Box

There is no doubt that vaping will remain a fixture at the ballot box for years to come. In fact, some vaping legislation was present in the 2020 elections, namely in Colorado and Oregon. While these placed taxes on wholesale vape, this is also important for retail customers because this means that the price of your vaping products, and most importantly, the access to your vaping products, will be in jeopardy. 

The raised taxes on vaping products could lead to the following actions. Stores may choose to pass the buck onto consumers, or even choose to close up shop entirely due to the increased cost of doing business. This is why, as we mentioned before, that you should take action at the local and state level. Let your elected officials know that their stance on vape will determine the way you vote.

Regulation

With a new administration may come an entirely new way in how the FDA operates. Dr. Stephen Hahn may not be in his position for much longer, and the Senate will decide his successor in the early months of 2021. There are still a few undecided Senate races as of this writing, but January 2021 will prove pivotal to Georgia vapers as they must vote for two Senate seats. We will talk about this later on in the post.

This may prove pivotal in deciding Dr. Hahn’s successor, although there is one case in which the FDA commissioner has stayed on despite the presidency changing hands. Dr. David Kessler was FDA commissioner from 1990 to 1997. He was appointed during the George H.W. Bush administration and stayed on until shortly after Bill Clinton’s second term began. However, the person who may hold the most power over the industry is the head of the Center for Tobacco Products, Mitch Zeller, who we will discuss later on in this post.

Legislation

As we previously mentioned, a few Senate races are still undecided as of this writing. Two of these Senate seats are in Georgia, where Democrat Raphael Warnock is facing off against current Republican Senator Kelly Loeffler, and fellow Democrat Jon Ossoff will challenge current Republican Senator David Perdue. Georgia vapers could possibly decide the way vape legislation is carried out based on who takes office. President-elect Joe Biden barely edged out a victory in Georgia himself. While many House of Representatives races are still very close, it looks like the Democrats will retain control of the House.

Democrats have gained seats in Arizona and Colorado. In Arizona, Democrat Mark Kelly unseated Republican Martha McSally, while in Colorado, former Democrat governor John Hickenlooper unseated current Senator Cory Gardner. In the case of a tied Senate vote, the Vice President (who is also President of the Senate) casts the tie-breaking vote. The Vice President-elect is former Democratic Senator Kamala Harris from California. Her successor in the Senate is going to be from the Democratic Party, as California is a strong Democratic stronghold.

The Courts

In a previous State of Vape, we discussed for our wholesale customers how vaping could make its way through the courts and possibly even reach the Supreme Court. It may be unthinkable to believe that vaping could make it to the Supreme Court, but there are ways and means that vaping could be put in front of the nation’s highest court; in fact, two cases are currently in the U.S. Court of Appeals, which is the second-highest court in the United States.

As we previously mentioned, Mitch Zeller, one of the pivotal regulators of the vaping industry, serves as the head of the FDA’s Center for Tobacco Products (CTP). Zeller has been in his position since 2013. He holds lots of power over the vaping industry, and has been behind a lot of the regulation of the vaping industry such as the Deeming Rule and PMTA itself. It has been argued that the CTP is in direct conflict with the Appointments Clause of the Constitution, which states that officials in the executive branch who exercise significant authority must be nominated by the president and confirmed by the Senate. 

It can be argued that Zeller does exercise significant authority since he can decide whether or not an entire industry can exist. The Appointments Clause was created so that there is accountability to the people’s representatives. Zeller’s position does not require Senate confirmation and therefore that accountability is not required, despite his near-absolute power when it comes to the vaping industry’s very existence. Zeller is an Obama-era appointee, so it looks unlikely that he will lose his job because his position does not require Senate confirmation. However, the Biden administration might change everything around, so vapers must remain vigilant.