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Vape Product Black Market Flouishes in the Chaotic Aftermath of the PMTA Deadline

October 20, 2020

Senator Dick Durbin has sent a letter to the Food and Drug Administration demanding that the agency publish a list of companies that have submitted applications for their vape products and urging the FDA to begin enforcement actions against companies still selling products on the market illegally.

The FDA required all companies to submit lengthy and expensive applications, called Premarket Tobacco Product Applications (PMTA's), by the deadline on September 9th. Any product for which an application was not submitted by the deadline is no longer legal to sell in the United States.

However, because of the sheer volume of applications received (including applications from Kai's Virgin Vapor for 19 e-liquid flavors), most manufacturers have yet to hear anything back from the FDA. Additionally, it's difficult to tell how many of the products still on the market are legal since quite a few companies are remaining tight lipped about whether or not they submitted a PMTA. It seems likely that a significant black and grey market in vape products is flourishing in the chaotic aftermath of the deadline.

Senator Durbin reminded the FDA of its pledge to "make publicly available a list of the deemed new tobacco products that are subject to the September 9 deadline, were on the market as of Aug. 8, 2016, and for which a premarket application is submitted by Sept. 9, 2020." Such a list would provide clarity to consumers as well as aid vape shop owners who are left to try to determine on their own which products they can still sell.

Consumer sentiments about the black and grey market in vapor products created in the wake of the PMTA deadline are varied. Some consumers celebrate that their favorite vape juice flavors or e-cigarette devices are still available even if they are not FDA sanctioned. Others want the peace of mind of ordering only from companies that have submitted their products to the FDA and prefer their purchasing power goes to support companies attempting to comply with regulations.

Likewise, on the industry side, opinions are divided. Many vape business owners are angry that their livelihoods are being threatened and that businesses they have worked for years to build are being shut down because they couldn't afford to submit a PMTA. On the other hand, companies that have put in the hard work and ponied up the considerable cost of product testing and PMTA submission are being hurt as the market is diluted by illegal product sales.

It's been a wild ride for vapers and the vape industry and no matter what the FDA does next, it appears that the road ahead will continue to be bumpy.

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