Vaping Companies See Bias in Indiana Law

     INDIANAPOLIS (CN) – New Indiana regulations of smoke-simulating, “vaping” products kowtow to Big Tobacco’s interests, three businesses claim in Federal Court.
     As smoking bans have made the use of traditional tobacco products illegal in many public places, many businesses have rushed to fill the void in the market with electronic, or e-cigarettes, and vaping pens, devices that supposedly sate the need to smoke tobacco without the public health hazards.
     Enroll Act 1432 represents Indiana’s effort in the move by governments to regulate the emerging products, but Legato Vapors and two other businesses contend in a May 12 federal complaint that the law is discriminatory in that it distinguishes between nearly identical products.
     The law focuses on the fact that users of e-cigarettes must fill and refill unsealed tanks, while users a “vaping pen” must rely on sealed cartridges that they cannot refill.
     While the liquids used in each system function similarly and are chemically identical – a combination the complaint describes as “water, propylene glycol, glycerin, flavor additives and perhaps nicotine” – the plaintiffs say there is one important difference.
     Traditional tobacco companies are the leading, and perhaps only, manufacturers of sealed cartridges for so-called “closed vaping system devices,” according to the complaint.
     Altria makes MarkTen and Nu Mark; Reynolds makes VUSE; Lorillard makes Blue; and British American Tobacco makes VYPE. None of these companies produces liquids for refillable e-cigarette tanks, according to the complaint.
     Not coincidentally for the plaintiffs, the Enrolled Act requires only the latter manufacturers to obtain a permit if they want to sell their products in Indiana.
     Legato and co-plaintiff Jet Setter Juice say the law promises difficulty for them since they produce liquids for these so-called “open vaping system device.” The third plaintiff, Derb E Cigs Indiana, is a brick-and-mortar retailer of e-cigarettes in Clarksville, Ind.
     It says the Enrolled Act, introduced by Republican state representative Kevin Mahan, threatens to force it from the marketplace.
     The plaintiffs note that Indiana’s discriminatory intent protects the cash flow that the state sees from traditional tobacco companies under the Master Tobacco Settlement, a 1998 agreement that secured compensation for medical costs associated with treating symptoms from tobacco use. The settlement is slated to pay hundreds of billions of dollars in its first 20 years.
     While there is no evidence suggesting that liquids for refillable e-cigarettes are more harmful than sealed tanks, Big Tobacco has a poor track record when it comes to “manipulating their tobacco products, including the addition of chemicals, for the purpose of making them more addictive to users,” the complaint states.
     The Enrolled Act allegedly uses “the false guise of promoting public safety and welfare” to impose unequal regulatory burdens meant solely to benefit Indiana’s cash cow, the complaint continues.
     Among other restrictions, the Enrolled Act requires manufactures to enter into a five-year agreement with a security company for security services for their facilities, and to store samples from every batch of liquids going back through the past three years.
     Legato and its co-plaintiffs want a federal judge to enjoin the Enrolled Act as unconstitutional. It says classifying e-liquids as tobacco products is unfair because they contain zero actual tobacco. At minimum, some contain only nicotine synthesized from tobacco, according to the complaint.
     Gregory Troutman represents the plaintiff businesses.

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