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EYE ON THE
Storm
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Attorney Azim Chowdhury offered his insight into
the US problem
A slew of largely unfounded scare stories and the
implementation of PMTA regulations have made the US a
hostile place for vaping. The situation is such a minefi eld
that attendees were grateful that an American expert was
on-hand to help explain exactly what the US industry
currently faces.
Azim Chowdhury is a regulatory and public policy attorney at
Keller & Heckman LLP. He specialises in vape, nicotine and
tobacco product regulations and works with many of the major
industry players.
Azim revealed that the story of the flavour ban goes much
further back than the ‘teen vaping epidemic’ of 2018 and 2019.
Tobacco companies introduced flavoured tobacco products in
the late 1990s. These included fruit, berries, coconut, desserts
and chocolate – many of the flavours now found in e-liquids.
Big Tobacco came under fi re from public health bodies which
argued that these were an attempt to attract minors. And a
2004 survey showed that consumers of flavoured cigarettes
were in fact younger, with 20 percent aged between 17 and 19,
with the lowest use among smokers over 40.
Azim said: “The products were pulled from market in 2006,
three years before the Tobacco Control Act (TCA), because the
92 VM26
Master Settlement Agreement already prohibited companies
from targeting youth.
“Their position was that words like ‘sweet flavour’ were
marketing tactics to attract minors. Only tobacco and menthol
were left on market.”
In the lead-up to the enactment of the TCA, congressional
reports on flavours highlighted the impact ‘deceptive
advertising promotions’ such as cartoon characters had on
youth initiation.
This fed into the TCA ban on the characterisation of flavours
other than tobacco and menthol. This included special
authorisation for the FDA to research the use of menthol in
combustible cigarettes.
“The question now becomes: How much of that history of Big
Tobacco and flavoured tobacco products is applicable to less
harmful vape products where flavours could actually have a
public health benefi t in terms of helping smokers switch to less
harmful alternatives?”
A draft version of the Deeming Rule published in 2014
would have resulted in a ban of all flavoured e-liquids. But
stakeholders pushed back, arguing that flavours presented a
public health benefi t and a ban would shut down, the by then,
well-established vape industry.