The Good Fight

Vape store owners lobby, protest and prepare as the FDA’s May PMTA deadline looms large.

By Maria Verven

It’s a battle to protect vapers’ right to vape. A battle for their livelihoods. A battle they have no intention of backing down from.

Vape store owners all across the U.S. are getting ready for the fight of their lives when, on May 12, 2020, the U.S. Food and Drug Administration (FDA) intends to start enforcing its new policies against  e-cigarette retailers that have not received a marketing authorization.

The FDA’s set of enforcement priorities include any flavored cartridge-based electronic nicotine-delivery systems (ENDS) as well as any products—both open and closed systems—for which the manufacturer has not submitted a premarket tobacco product application (PMTA). Plus, any ENDS products targeted or marketed to minors or manufacturers that failed to take adequate measures to prevent access to minors will also be targeted.

Fortunately, the FDA is exempting tobacco-flavored and menthol-flavored ENDS products from its proposed enforcement priorities based on the fact that these flavors hold less appeal to youth.

However, in all the above cases, the FDA promises to take legal action, including against the thousands of retailers—mostly small business owners—that sell ENDS products. It’s estimated that independent vape shops account for about one-third of all e-cigarette product sales.

While the vast majority of vape shops sell refillable open system vapor devices and e-liquids, the owners nevertheless have grave concerns when it comes to the FDA’s new enforcement policies.

Vapor Voice spoke with three vape shop owners about the impending May 12, 2020, deadline—David Higginbotham, owner of HiggyCigs in Lilburn, Georgia, and president of the Georgia Smoke Free Association; James Jarvis, owner of Vapor Station and president of the Ohio Vapor Association; and Marc Slis, owner of 906 Vapor in Houghton, Michigan, and co-founder of the Michigan Vape Shop Owners Association.

How have you been preparing for the May 12, 2020, deadline? 

Higginbotham: I have been working hard with local and national groups to fight this deadline, but at the same time, I am also looking for work in my previous career. My wife is planning to hold down the fort while I fund our business with outside income.

Jarvis: We have been hyper-focused on what our business will be like in the post-May 2020 world. If we get no relief or reform from [the] FDA, we will be forced to close three of our four remaining locations; we will continue to operate from that location until they physically shut us down. My wife has started online accounting classes, and more than likely, I will have to take a job in my previous field. I worry about our 16 employees who will be left with no other option but to start over or go on unemployment.

Slis: First off, I’m in this fight to win. We are on the side of right, science, truth and health. Call me naive, an optimist or foolish, but I believe if everyone pulls together, this industry and community can and will win this fight.

I must confess that until September 2019, I solely concentrated on learning how to help my customers quit smoking and figuring out how to run a retail business. I wasn’t involved or even aware of the community and industry at large. I just ran my shop, educated my customers and spent all my free time in the woods hunting and fishing. My bad, as it turned out.

How will the FDA’s new enforcement priorities affect your businesses?

Higginbotham: It will put me out of business completely. The cost of a PMTA is more than I make in a year or even two years. The PMTA process is designed to shut down small businesses, which is precisely what it will do.

Jarvis: If the FDA’s priority is truly prefilled flavored pods, it may not have much effect on our stores since we only sell Leap Vapor pods and disposables. Since the FDA’s announcement, we offered our current flavored pod users a 15 percent discount to switch to an open system and e-liquids. We also offer a 15 percent discount to smokers who surrender their cigarettes and start vaping in the hope that we can convert rather than lose them back to cigarettes or the black market. Keeping vapers from going back to smoking and giving smokers the most successful option to stopping smoking is our highest priority.

Slis: My sales have been suffering for a good year due to the mounting negative press and misinformation, the federal T21 [Tobacco 21] rule and recent enforcement priorities on flavored closed systems. Because I concentrate on creating ex-smokers, the majority of my customers transition off of smoking and eventually off of vaping. I’ve always said the second-best day with my customers is the day they come in and announce they’re done with both smoking and vaping.

My customers bring in their friends, family and coworkers, so I’ve never needed to advertise. But with the coordinated misinformation campaign by tobacco and pharma-funded “public health” groups, HHS [Health and Human Services], [the] CDC [the U.S. Centers for Disease Control and Prevention],

FDA and a complicit media, I began to see [fewer and fewer] new customers while our old customers continued to transition off of vaping.

During the last six months of 2019, my sales dropped by an estimated 60 percent after e-cigs were blamed for the lung illness outbreak and the announcement of the [Michigan] governor’s flavor ban and allegations that we were targeting and addicting kids.

In December, just as sales were rebounding to about 80 percent compared to December last year, T21 was responsible for another overnight 20 percent drop, making it impossible for me to continue to employ my one long-time employee, Alec, whom I had employed for the last five [years] after purchasing 906 Vapor. Alec was the young man who introduced me to e-cigarettes six years ago and singlehandedly saved my life after the government and the medical [and] public health communities failed for 30 years.

The single worst day of my life was having to let go [of] the man who saved my life, but the alternative was closing for good. My customers are my friends and neighbors, and I will do anything to keep them from having to go back to smoking or rely on a black market.

The most recent flavored closed pod ban has not impacted my sales at all. We never carried pre-filled closed systems at 906 Vapor with the exception of a few disposables. I’ve phased them out completely in favor of an inexpensive open system.

I am also compiling a list of pre-Aug. 8, [2016,] products still on the market if we are forced back to them. Otherwise, I am expending every effort to defeat that deadline, as I believe we all should be doing.

Have you been involved in the battle to fight for the vaper’s rights?

Higginbotham: I have indeed. As president of the Georgia Smoke Free Association, we have been involved in hearings with Georgia legislators over the past few months. In February, I will join a group of vape business owners in approaching those same lawmakers to show them how big an issue vaping is to the local economy and health of Georgians. On the national end, we are members of the Vapor Technology Association (VTA) and have joined them on Capitol Hill to address our legislators in Washington, [D.C.]

Jarvis: Since becoming president of the Ohio Vapor Trade Association, I have been heavily involved in defeating anti-vaping legislation in Ohio. However, last October, we were hit with both a statewide T21 and a vapor wholesale tax, which forced us to close one of our stores. On the day the tax went into effect, we held a rally, attended by 650 people, at the Ohio Statehouse to voice our frustrations with the new laws.

I have also been a speaker at several Vapor Technology Association (VTA) national conferences and was awarded [the] VTA’s 2018 Advocate of the Year. I attended many meetings in Ohio and Washington, D.C., including as a guest speaker at the United Vapor Alliance last November. Since then, I have traveled to Hershey, Pennsylvania; West Palm Beach, Florida; Lexington, Kentucky; Battle Creek, Michigan; and Toledo, Ohio to help lead protests at President Trump’s rallies. 

Slis: Everything changed that early morning in September when I read The Washington Post story an hour after it broke. I got out of bed at 1 a.m., made a pot of coffee and compiled the phone numbers for my state representative, senator and governor. I spent the rest of the night learning about their political careers and the Michigan political landscape until morning, when I began calling them.

Since that moment, I have been fighting nonstop with little regard to anything else in my life.

My first call that fateful morning was to my state representative. I was the very first to call his office at 7:30 a.m. He answered the phone himself, which surprised me. I also made the first call to my state senator’s office (he also answered himself) and the first call to the governor’s office. My state representative called me back a few days later to inform me of a state House Oversight Committee hearing on vaping scheduled the next week and encouraged me to testify. While I’m terrified of public speaking, I summoned up the courage to speak, and surprisingly, the video of my testimony went viral on Redditt and YouTube.

Hundreds of media requests resulted from that initial testimony, including NPR and a live broadcast from my vape shop on Fox News. On behalf of the Defend Michigan Right Coalition, I then sued the governor, the state and the Department of Health and Human Services, testifying before the Michigan House Regulatory Reform Committee, which resulted in a preliminary injunction granting a temporary open-ended halt to the Michigan flavor ban. The governor appealed to both the state appellate and supreme courts, which declined to hear the case. Three separate motions filed by the state in all three courts to overturn the injunction were denied. The case is currently stuck in the Michigan appellate court.

A couple of other shop owners and I founded the Michigan Vape Shop Owners in late October, which is now becoming the Michigan chapter of the VTA. Completely self-funded, we’ve retained both an attorney, a lobbying firm and a media team to handle media requests and counter misinformation with actual science and statistics. We’ve been actively lobbying in our state capitol to properly regulate the Michigan vaping industry and organizing protests at President Trump’s rallies, garnering both national and international attention. 

We held a lobby day when we met with as many state representatives as possible as well as a meet-and-greet with our U.S. congressman and two of my customers, when I made sure that vaping was the first topic we discussed.

I’ve been extremely active on social media to influence policymakers and the media but also to motivate others to be active and vocal, which will be crucial over the next few months. Twitter is the platform we need to be on, where we can directly engage lawmakers, policymakers, the public and media. I’ve done a podcast with Lindsey Stroud from the Heartland Institute, a few live shows with the Smoke-Free Radio Network, a very informative and dynamic group of advocates—I especially recommend the Monday 20!—a vaping documentary with the Economist Media Group and a program with the Japanese TV station NHK.

While I’ve been pretty active and have gotten a lot of attention over the past six months, I need to point out that I’m just a regular guy and a nobody. I just saw the need for my community and industry to be heard. I wasn’t comfortable or confident, wasn’t sure what to say or do, but I just jumped in, started speaking up and getting active on social media. I’m still terribly uncomfortable with all of it, but it needs to be done to save this amazing community and technology, so I do whatever I’m asked—whatever I can. I urge the business owners in every state to do the same! If I can do it, anyone can.

I urge all vapers to join Consumer Advocates for Smoke Free Alternatives (CASAA), the Smoke-Free Alternatives Trade Association (SFATA) and the American Vaping Association (AVA)—the organizations that represent consumers. And ask your vape shops if they’ve joined the VTA and/or any state vaping trade organization that’s active in the fight.

Ask what they’re doing to fight for your right to vape and be smoke-free, and support those shops as well as the hardware and liquid manufacturers that are active. Get on Twitter, follow other activists, media and lawmakers, and especially the tobacco control and scientific/medical folks that support tobacco harm reduction and vaping.

Whatever you do, don’t give your money to shops and manufacturers that are simply taking your money and refusing to fight. Make the power you hold as a consumer or a business owner work for you and help save vaping.