WATCH | Almost overnight, it seems as if more and more people are vaping. But soon, much like smoking cigarettes at bars, vaping could be a thing of the past. The Food and Drug Administration admits some smaller manufacturers could be put out of business because of an FDA regulation.
The regulation, called the Deeming Rule, implements new restrictions on the e-cigarette industry as a result of the bipartisan 2009 Tobacco Control Act, which gave the FDA regulatory power over nicotine products. There was no oversight on e-cigarettes prior to this rule.
The Deeming Rule mandates any nicotine products not on the market before February 2007 -- meaning most e-cigs -- must meet public health standards and that comes with a big price tag. It costs about $1 million to go through the FDA approval process.
A cost of $1 million might not seem like much for a manufacturer at first, but each product a manufacturer produces would be subject to the $1 million price tag, and many manufacturers produce different flavors and each flavor offers multiple levels of nicotine -- all of which would have to be approved individually by the FDA.
Many retail shops mix their own nicotine liquid for consumption, so this cost would apply to them as well. The FDA believes most retail shops will stop mixing their own liquids as a result.
"My thought is, I'll keep going to 2018 in August. And then if it all goes down the tubes, I'll have to close my doors too."
—Jim Cottrill, Owner of Vape 108
Jim Cottrill, the owner of Vape 108 in Wisconsin, believes the rule might put him out of business.
The rule also bans the sale of e-cigarettes to minors, prohibits free samples, and requires federal warning labels.
Not surprisingly, the American Lung Association backs the Deeming Rule. "E-cigarettes are not safe. They cause harm, particularly to adolescent brain development, to fetal development," said Paul Billings of the Lung Association.
A recent Surgeon General report on the the ills of e-cigarettes found that "e-cigarette aerosol is not harmless.
"It can contain harmful and potentially harmful constituents, including nicotine. Nicotine exposure during adolescence can cause addiction and can harm the developing adolescent brain," according to the report's executive summary. The study also found that for young Americans, e-cigarettes are now used more than traditional cigarettes and have become the most-used tobacco product.
"What they didn't look at [was] what happens when you have millions of people who have quit smoking and started vaping."
—Rep. Duncan Hunter
Rep. Duncan Hunter (R-Calif.), a vaper himself, thinks the FDA is missing the larger picture -- though he agrees that children shouldn't vape.
Hunter had used tobacco since he was a teenager, but e-cigarettes helped him quit traditional cigarettes.
The Centers for Disease Control and Preventionfound that in 2015, about 15 out of every 100 adults in the United States currently smoked cigarettes -- a decrease since 2005. They did not look at the relationship to the rise in e-cigarettes.
Hunter, along with lobbyist Mark Block, who runs the Electronic Vaping Coalition of America, is hopeful that they can roll back the Deeming Rule. And they aren’t alone.
Sen. Ron Johnson (R-Wisc.) is an ally of vapers. The senator, along with Block, believes vapers helped Johnson win a tough re-election in Wisconsin. Johnson, along with Block’s advocacy group, actively engaged vapers to vote for the senator using a combination of rallies as well as direct mail.
After winning re-election, Johnson took time to thank vapers for their support. “Thank you vapers. You made this night possible. I will be on your side," he said after winning his race.
Cottrill was one of those vapers who was targeted by Block. “When it came to voting, we had a lot of people who pledged to vote. We got a lot of people involved from the vaping community," Cottrill said.
Cottrill attended a pro-vape rally where Johnson spoke, and took the additional step of urging vapers who shopped at his store to understand what was at stake. It was Johnson’s focus on the Deeming Rule that really appealed to him and other vapers he knows.
"As a voting block, the vaping community not only made the difference," Block told Circa, "but we're hoping it will send shock waves throughout Washington, D.C., that indeed this is a group, a voting block, needs to be dealt with."
The legislators are leaning on the Trump administration to repeal the rule. They hope their push will coincide with Trump's promise to undo many of Obama's regulations.
Hunter and Johnson don't want e-cigarettes to be free of regulations. Instead, they don't want the FDA to regulate the smoking devices -- only the nicotine liquid.
Hunter wants the United States to adopt the Association of E-Liquid Manufacturers guidelines for regulating e-cigarettes. Those guidelines are less onerous than the Deeming Rule.
"What these companies try to do is have it both ways... They want to avoid any oversight or common sense safeguards."
—Paul Billings, American Lung Association
But the American Lung Association thinks pro-vapers are trying to have their cake and eat it too.
Trump has not spoken about the issue at all, so it is unknown if he will repeal the regulations, but Block and Hunter are hopeful.