The 2020 elections have been (mostly) wrapped up. This means a lot of things for the vaping industry. You should still betaking action to preserve your access to flavors, and be mindful of what is happening next in the vaping industry. In this State of Vape, the eLiquid.com team investigates what’s next.
Expect more at the ballot box
Vaping will be a fixture at the ballot box for years to come.Vaping legislation was on the ballot in the 2020 elections, particularly in the states of Colorado and Oregon. Voters approved increased taxes on wholesale vaping products. Why is this important to retail customers? The price of your vaping products, and more importantly, the access to those vaping products are at risk.
With taxes going up on vaping products, stores are forced to take options that they wouldn’t usually take. Like in any other industry, they can choose to pass the increased cost of doing business onto the consumer, or even close down entirely because of the increased cost of doing business. As we previously mentioned, you should take action at the local and state level. Let your elected officials know that their actions regarding the vaping industry will determine whether or not they stay in office.
Regulations may (or may not) change
A new administration means new officials in most federal agencies, and that includes the FDA. Dr. Stephen Hahn may not be in his position come early 2021, and the Senate must confirm his successor as well during that time. Some Senate races are still undecided as of this writing. The state of Georgia will vote for two Senators in early 2021. We will go into further detail later on in this blog post.
Since the Senate must confirm Dr. Hahn’s successor, whoever wins those two Senate seats will be vital in determining the direction the FDA takes. However, there is one case in which the FDA commissioner has stayed on despite changes in the presidency. Dr. David Kessler served as FDA commissioner between 1990 and 1997. He was appointed during the George H.W. Bush administration and stayed on until the beginning of Bill Clinton’s second term. The person who may have the most power over the vaping industry is the head of the Center for Tobacco Products. The current head is Mitch Zeller, and we will be discussing him later on in this post as well.
How will vape be legislated? Depends on who controls the Senate
As previously mentioned, there are still a few undecided Senate races. The future of vaping may take center stage in the state of Georgia. Democrat Raphael Warnock is seeking to unseat current Republican Senator Kelly Loeffler, while fellow Democrat Jon Ossoff faces off against current Senator David Perdue. This means that vapers in Georgia could decide where vape legislation will go in the next few years. President-elect Joe Biden barely won Georgia himself. Several House of Representatives races are still undecided as well, but it appears that the Democrats will retain control of the House.
Democrats gained Senate seats in Arizona and Colorado. In Arizona, Democrat Mark Kelly defeated Republican incumbent Martha McSally, while Democrat former governor John Hickenlooper unseated current Republican Senator Cory Gardner in Colorado. In the case of a tied Senate vote, the Vice-President (who is also President of the Senate) will cast any tie-breaking votes. Former Democratic California Senator Kamala Harris is the Vice President-elect, and her successor will also be a Democrat, as California is a strong Democratic state.
Could vaping go to the Supreme Court?
We covered for our wholesale customers thatvaping could actually reach the Supreme Court. The idea of vaping going to the Supreme Court may be unthinkable for some, but there are ways and means that vaping could actually make it to the nation’s highest court. Two cases are already making their way through the U.S. Court of Appeals, the second-highest court in the United States.
Mitch Zeller, as we previously mentioned, is the head of the FDA’s Center for Tobacco Products (CTP) and is a pivotal regulator of the vaping industry. He has served in that position since 2013. His power over the vaping industry is only second to that of the head of the FDA, and he has been behind regulations such as the Deeming Rule and PMTA. Some have argued that the CTP is in direct opposition with the Appointments Clause of the Constitution. This states that any official of the executive branch who exercises significant authority must be nominated by the president and confirmed by the Senate.
The argument that could be made here is that Zeller exercises significant authority since he can decide whether or not anentire industrysuch as the vaping industry can exist. The Appointments Clause was created so that there is accountability to the people’s representatives. Zeller’s position as head of the CTP doesn’t require Senate confirmation, therefore that accountability is not required, despite his near-absolute power when it comes to the existence of the entire vaping industry. Zeller was appointed during the Obama administration, so it seems unlikely that he will lose his job in the near future. However, the Biden administration could change things around, and vapers need to remain vigilant.
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