House Bill 1069, which will take illegal vaping products shipped in via UPS from China off of store shelves and out of kids hands continues it’s path through the South Dakota legislature after it sailed through the House of Representatives on a 57-11 vote.
However, the word from the 3rd & 4th floors is that Big Vape has an army of lobbyists – nearly a dozen at last count – preparing to pounce on State Senators to try to stop the measure, which would limit the sale of vaping products in South Dakota to only those that have received FDA approval (or at the least, they have applied for it).
At this writing, there are literally 1000-1500 products that meet (at the least) the applied for FDA approval test. But the Big Vape interests are fighting to keep products that have NOT gone through any clearance, review or application to actually be sold in the United States to remain on their shelves. They want to keep selling the things they have just bought off the internet, and they want State Government to ignore it.
The US Government’s Food and Drug Administration has not sat still on these products with unregulated chemicals that have not been authorized for sale, such as this 2022 warning letter from the FDA to one organization doing business, calling itself Fifty Bar:
FDA has determined that you manufacture and offer for sale or distribution to customers in the United States ENDS products that lack a marketing authorization order, including: Fifty Bar 6500 Puff Rechargeable Disposable Mint, Fifty Bar 6500 Puff Rechargeable Disposable Vanilla Custard, and Fifty Bar 6500 Puff Rechargeable Disposable Pacific Cooler.
The tobacco products listed above are new tobacco products because they were not commercially marketed in the United States as of February 15, 2007. These products do not have FDA marketing authorization orders in effect under section 910(c)(1)(A)(i) of the FD&C Act and are not otherwise exempt from the marketing authorization requirement. Therefore, these products are adulterated under section 902(6)(A) of the FD&C Act (21 U.S.C. § 387b(6)(A)).
and..
FDA has determined that your firm markets new tobacco products in the United States that lack premarket authorization. All new tobacco products on the market without the statutorily required premarket authorization are marketed unlawfully and are subject to enforcement action at FDA’s discretion.
and..
Please note that tobacco products offered for import into the United States that appear to be adulterated and/or misbranded may be detained or refused admission.
Read that letter from the Food & Drug Administration here.
Fifty Bar – with principal Brady Bates as named on the letter – was warned last September (9/12/24) that they are selling products considered adulterated by the FDA. So, what action do they take to remedy this?
In South Dakota, they hired a lobbyist to try to stop legislation to take what the FDA considers adulterated products off store shelves:
I don’t think I’ve seen that one before. Where someone is told that their product is marketed unlawfully, subject to enforcement action, and considered adulterated at the federal level. So, they hire a lobbyist to keep these products on the shelves. Which must be big business, because why else would a Texas-based vape company hire a South Dakota lobbyist right before the committee meeting?
Also sending a lobbyist to fight the measure in committee designed to regulate the currently unregulated vaping products shipped in from China was a lobbyist representing the Washington DC based Vapor Technology Association. Why do we care about them?
- Because the VTA is the only U.S. based “International Partner” of The Electronic Cigarette Professional Committee of China Electronics Chamber of Commerce (ECCC), the Chinese-government-controlled vapor industry association. You can see them featuring the VTA’s activities here, where the Chinese vaping group praises them on their work to “escort the standardized and prosperous development of the global e-cigarette industry.” Literally, VTA wants SD legislators to vote against this bill and vote FOR their international partner in China!
- In other states that have passed legislation of this nature, the VTA has also brought suit to try to keep the pipeline open for illegal vaping products. In fact, they just lost a case in federal court in Kentucky trying to stop their law, where the opinion expressly noted “The Court cannot, and will not, find that anyone has a legally protected interest in violating unambiguous federal law.”
Senators can expect that their phones and e-mails are going to be hit this weekend from those who have an interest in keeping the unlawful, and as far as the FDA is concerned, adulterated products on store shelves which will end up in the hands of South Dakota youth.
As opposed to those selling unapproved vaping products, and partners of the Chinese vaping industry, House Bill 1069 has been supported by those who do it right, and sell legal products. That list includes the SD Police Chiefs, Melissa Magstadt, Secretary of the Department of Health, the Sheriff’s Association, Petroleum Marketers (who don’t want to sell the illegal stuff), the Department of Revenue, Protecting SD Kids, Concerned Women of America, and the Attorney General’s office.
The bottom line is that Senators should resist the push from those who are selling the illegal and unknown Chinese vaping products and their lobbyists, and to pass House Bill 1069 next week.
