Press Release

Arbitrary federal vaping regulations threaten businesses, consumers—and constitutional rights

New challenges are the first wave in PLF’s strategy to
dismantle the unconstitutional regulatory state

Washington, D.C. January 30, 2018: A growing number of smokers are turning to electronic cigarettes—vaping—to wean themselves off tobacco. Indeed, many vape business owners—like Steve Green, owner of Mountain Vapors, a small shop in Sonora, California—are former heavy smokers who want to help others kick the habit.

But Steve’s business and others across the country are threatened by unconstitutional and illogical federal regulations. A career bureaucrat with the Food and Drug Administration ordered that vaping be made subject to the Tobacco Control Act—even though vaping doesn’t involve tobacco. Battery-powered coils transform liquids into inhalable vapor containing some or no nicotine (depending on the user’s preference), but with none of the cancer-causing tar in cigarette smoke.

Under the arbitrary edict by Associate Commissioner for Policy Leslie Kux, small businesses that make flavored e-liquids and most small retailers need the FDA’s OK before introducing new products. The rule’s many requirements impose years of regulatory hurdles and hundreds of thousands of dollars in costs per product, which will stifle innovation and severely harm the economic viability of small shop owners. It is so broad that it effectively bans retailers from offering the custom flavors and client services that they used to provide. And advertising about vaping’s benefits, no matter how accurate, would also require extensive delays and expense in order to secure FDA permission.

Now, Steve and small vape shop owners in several other states are bringing constitutional challenges to these crippling mandates. They are all represented free of charge by Pacific Legal Foundation.

“These regulations don’t just harm small businesses and consumers, they undermine constitutional safeguards for individual liberty,” said PLF attorney Thomas Berry. “Rules that affect the American people must be issued by officials who are answerable to the political process, not by bureaucrats who have no political accountability. The Constitution requires that regulations with the force of law must be approved by agency executives nominated by the President and confirmed by the Senate.

“In contrast, the vaping edict was imposed by a career civil service employee,” he said. “It also flouts the First Amendment by stopping businesses from advertising truthful information unless they run a regulatory gauntlet.”

“These regulations have already damaged my business and my customers,” said Steve. “For example, some popular liquids are no longer available because small manufacturers and retailers can’t afford to navigate the regulatory process. I’ve also had to stop helping customers build or repair their vape pens. I stopped because it could classify me as a manufacturer and bury me under regulations.

“Finally, the advertising restrictions stop me from sharing my personal story,” he said. “For years I smoked two-and-a-half packs of cigarettes a day, and it nearly gave me emphysema. Vaping freed me from my addiction and the doctor says I’ve recovered.”

Steve filed his challenge in the U.S. District Court for the District of Columbia, joined by three other vaping businesses—two from Michigan and one from North Dakota. Additionally, four small vaping businesses in Minnesota, also represented by PLF, filed a federal challenge today in that state. They are joined by the nonprofit Tobacco Harm Reduction 4 Life. Finally, Joosie Vapes, a vape shop in Mesquite, Texas, filed a challenge in the U.S. District Court for the Northern District of Texas, also represented by PLF.

These three simultaneously filed lawsuits are the opening salvo in a broader PLF strategy to dismantle the modern regulatory state and put government back in its constitutional box, by reinvigorating the separation of powers as the robust safeguard for freedom that the Framers intended.

“The Constitution contains structural protections that ensure the survival and vitality of individual liberty,” said PLF President and CEO Steven D. Anderson. “PLF’s mission includes challenging unaccountable regulators who wield power they do not constitutionally possess. We look forward to disentangling the American people from the web of illegal regulations that have ensnared them and proscribed their prosperity for far too long.”

More information can be found at pacificlegal.org/vaping.

About Pacific Legal Foundation
PLF litigates nationwide to secure all Americans’ inalienable rights to live responsibly and productively in their pursuit of happiness. PLF combines strategic and principled litigation, communications and research to achieve landmark court victories enforcing the Constitution’s guarantee of individual liberty.

Case Attorneys

Thomas Berry

Attorney

Thomas Berry is an attorney in PLF’s Sacramento office. Prior to joining PLF, Berry was a legal associate in the Cato Institute’s Center for Constitutional Studies. While at Cato, Berry … ›

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Todd F. Gaziano

Senior Fellow in Constitutional Law, Executive Director of the DC Center

Todd Gaziano joined PLF in 2014 as Executive Director of its DC Center and Senior Fellow in Constitutional Law. Todd has served in all three branches of the federal government, … ›

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Damien M. Schiff

Senior Attorney

Currently a Senior Attorney at Pacific Legal Foundation, Damien joined PLF in 2005.  His practice has focused on federal and state environmental and land-use issues.  Damien was counsel of record … ›

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Anastasia P. Boden

Attorney

Anastasia Boden is an attorney in PLF’s Economic Liberty Project, where she challenges anti-competitive licensing laws and laws that restrict freedom of speech. Anastasia’s practice largely consists of representing entrepreneurs … ›

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Wen Fa

Attorney

Wen Fa is an attorney at PLF’s national headquarters. He has litigated numerous direct-rep cases dealing with private property, equality under the law, school choice, economic liberty, and the First … ›

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Oliver J. Dunford

Attorney

Oliver Dunford joined PLF’s National Headquarters in Sacramento in March 2017. He litigates across the country to defend and advance individual liberty and the rule of law. Oliver’s cases involve … ›

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Jonathan Wood

Attorney

Jonathan Wood is an attorney at PLF’s DC Center, where he litigates environmental, property rights, and constitutional cases. He is passionate about finding constitutional, effective, and fair solutions to environmental … ›

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