Both the US FDA and the US CDC are investigating incidents of severe respiratory illness associated with use of vaping products. After years of little regulatory action, these government Agencies are ramping up oversight of vaping products.
Under section 910 of the FD&C Act, persons or companies intending to market a new tobacco product must first obtain an order to do so. A person or company that seeks pre-marketing authorization order must submit a pre-market tobacco product application (PMTA) under section 910 (b) unless it chooses to pursue the 905(j) pathway and can show substantial equivalence or is exempt from those requirements. This also applies to electronic nicotine delivery systems (ENDS) (https://www.fda.gov/media/127853/download).
On July 12, 2019, a Court ordered the FDA to require manufacturers of e-cigarettes, cigars and other deemed new tobacco products that are not “grandfathered” (meaning all products commercially marketed in the United States before February 15, 2007), to submit applications for pre-market review by May 12, 2020. Due to the COVID-19 pandemic and reshuffled resources at the FDA, this deadline has been pushed out to 09-Sept-2020 (120-days extension).
It should be noted that not only are new tobacco products subject to the new published regulations and requirements but also any ENDS retail establishment that mixes or prepares combinations of liquid nicotine, flavors, or other e-liquids for direct sale to consumers for use in ENDS, or creates or modifies e-cigarettes for direct sale to consumers for use in ENDS (sometimes known as a vape shop) meets the definition of “tobacco product manufacturer” in section 900(20)15 of the FD&C Act.
Therefore, those establishments engaged in mixing and/or preparing combinations of liquid nicotine, flavors, and/or other e-liquids or creating or modifying e-cigarettes for direct sale to consumers for use in ENDS are both tobacco product manufacturers and retailers, and consequently are subject to all the requirements applicable to manufacturers and retailers including the PMTA requirements.
Importantly, the FDA has also provided enforcement priorities for ENDS products in their recent guideline published on 30-April-2020.
Further, FDA intends to prioritize enforcement of any ENDS product that is offered for sale after September 9, 2020, and for which the manufacturer has not submitted a pre-market application (or after a negative action by FDA on a timely submitted application). https://www.fda.gov/media/133880/download
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