A lawsuit is challenging Wisconsin’s new law banning the sale of e-cigarettes and vaping products not approved by the Food and Drug Administration.
The ban means options are limited to the 39 products currently approved by the FDA. Retailers that sell non-approved items face a fine of $1,000 per day per product.
The trade group Wisconsinites For Alternatives to Smoking and Tobacco, or WiscoFAST, is suing the state. Its lawsuit claims only the federal government has the authority to enforce FDA policy, and that the law violates the Equal Protection Clause of the Constitution by favoring vape and e-cigarette manufacturers differently than manufacturers of conventional tobacco products.
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Tyler Hall, president of WiscoFAST, told WPR’s “Wisconsin Today” that 3,000 businesses in the state will be affected by the law and will now be at risk of going out of business.
Hall also noted issues with the FDA’s process to approve vapes and e-cigarettes.
“Nobody knows what they’re looking for. Companies are spending millions of dollars just to get the approvals…. and only a handful [of products] have been approved,” he said.
Moreover, Hall said the products that are FDA-approved are generally not favored by consumers.
“They’re generally products that, you know, customers do not like to use. They’re not effective at helping them quit smoking,” Hall said.
Carrie Arblaster, Midwest regional advocacy director for the Campaign for Tobacco-Free Kids, is also not a fan of the law. The group is not part of the lawsuit against the ban, but Arblaster says it achieves little from a public health perspective.
“There’s not a lot of evidence that this is an effective public health tool. And what I mean by that is it’s [not] driving down use, and it’s [not] deterring youth use,” Arblaster told WPR.
There are 14 states with similar laws, according to the Public Health Law Center at Minnesota’s Mitchell Hamline School of Law. But Arblaster said only three of those states have actually implemented it.
Arblaster pointed to other policies like restricting the sale of flavored products and keeping taxes high enough to deter youth use.
As for the FDA’s recent approval of previously banned JUUL vapes in tobacco and menthol flavors, Arblaster said her organization sees it as “a big step backward for preventing youth e-cigarette use,” because menthol is used to market to youth.
