Fight for the right of vapers to be smoke-free
What we stand for
The Right to be Smoke-Free Coalition is a non-profit, industry-led trade association of e-vapor businesses dedicated to promoting the interests of the industry by advocating for reasonable and responsible laws and regulations, and fighting for the right of vapers to be smoke-free.
The Right to be Smoke-Free Coalition works with expert legal counsel and the broader industry to develop comprehensive litigation strategies to challenge unlawful Federal and State Laws and Regulations. Our current activities and information will be updated periodically. To join the fight please contribute to become a member of the Coalition.
Our Coalition is positioned to enforce and defend the industry, and we need your help. Lawsuits of these nature are costly and we expect vigorous defense against our efforts. If you are an industry advocate, e-liquid producer, device manufacturer, vape shop owner or internet retailer that believes in responsible and appropriate regulations, you can join the Coalition or contribute to the cause.
Contribute to Become Member
To become a member of the R2B Smoke-Free Coalition and our fight for reasonable and responsible vaping laws and regulations, click here to make a financial contribution.Contribute
The Right to be Smoke-Free Coalition is a 501(c)(6) non-profit trade association organized under the laws of Washington, D.C. We are not a charitable organization. Your contribution allows you to become a member. All funds raised go toward litigation fees and related expenses. Please check with your tax advisor to determine the tax deductibility of any contributions
Learn about our fight
The State of Indiana recently adopted a law that could wipe out the e-liquid industry in that state and, if not taken off the books permanently, could create dangerous precedent for other states. Effective July 2016, the law prohibits e-liquid manufacturers, whether or not they are located in the state, from selling products to retailers and distributors in Indiana without a permit which requires compliance with expensive and burdensome manufacturing and security protocols that may be impossible to meet. Indiana vape shops will also be required to obtain a tobacco sales certificate and are prohibited from selling e-liquids where the manufacturer has failed to obtain a permit. Of most concern, the statute is aimed solely at e-liquids used in “open-system” products, while giving manufacturers of “closed-system” cigalikes a free pass.
Three e-liquid producers and an Indiana vape shop recently filed a lawsuit in federal district court challenging the statute on various constitutional grounds. Because it is absolutely critical for the court to understand that this statute poses a substantial risk to the entire e-vapor industry, as well as for an industry-wide association to take charge of advocacy efforts across the country, The premium e liquid company Cosmic Fog Vapors came together with Vapor Shark and Mt. Baker Vapor to form the Right to be Smoke-Free Coalition.
The Right to be Smoke-Free Coalition is currently in the trenches in the battle for Indiana, where e-liquids used in open-systems will be effectively be banned starting July 1, 2016. Defeating this law is critical not only for doing business in Indiana, but for setting precedent in other states. The situation in Indiana is critical for the entire industry. This is no longer about advocacy – it’s about survival. The law is already on the books and, in just a few short weeks, practically the entire e-liquid industry will be shut out of the state. Click here for the latest updates!
In July 2015, a group of e-liquid companies came together to form the Right to be Smoke-Free Coalition for the specific goal of challenging unconstitutional state and federal laws related to the e-vapor industry that are starting to pop up all over the country. The most egregious of these laws is HEA 1432 in Indiana, which will prohibit the sale of “unpermitted” e-liquid products used in refillable open-system devices starting June 30, 2016. When we discovered that parts of the law (e.g., the security firm certification and Indiana commercial kitchen code requirements needed to obtain a permit) are essentially impossible to comply with, we knew we had to take this to court. We would soon learn, however, that this was not a situation where the legislators were genuinely trying to protect the public safety and just weren’t familiar with vapor products. Rather, the Indiana law turned out to be completely driven by special interests in the casino and security industries trying to establish an e-liquid monopoly. .
In September 2015, the Coalition intervened in a lawsuit filed a few months before by Derb E-Cigs/Legato Vapors challenging the constitutionality of the Indiana law. In January, we deposed the Indiana Alcohol and Tobacco Commission (ATC) and got them to admit to several important facts; namely, that they were not aware of any security companies that would qualify under the law. On January 29, 2016, we filed our motion for permanent injunction and partial summary judgment, in which we argue that the Indiana law violates several provisions of the Constitution, including:
- The Dormant Commerce Clause of the Constitution Because It Regulates E-Liquid Manufacturing Activities Occurring Outside the State;
- The Due Process Clause of the Constitution Because There Are No Security Companies That Qualify Under the Statute;
- The Equal Protection Clause of the Constitution Because It Only Regulates Open System E-Liquid Manufacturers;
- The Indiana Constitution Because It Only Regulates Open System E-Liquid Manufacturer;
- The U.S. and Indiana Constitutions Because It Improperly Classifies E-Liquids As A “Tobacco Product” Under Indiana Law; and
- The U.S. and Indiana Constitutions Because It Only Regulates Retailers Selling Open System E-Liquids.
As a result of our deposition and lawsuit, those interests pushing the law realized that because of ATC’s admission, they weren’t going to be able to get ATC to certify any security firms – even though they were the ones that drafted the law! To get around this, they pushed an amendment to the law (now codified in HEA 1386) that would modify the certification requirements to allow only one security firm to qualify. That amendment has now been signed by the Governor of Indiana. Unless we win this lawsuit, that single security firm will be able to pick and choose who it does business with and who gets to sell e-liquid in Indiana. We understand they are no longer accepting clients.
The Right to be Smoke-Free Coalition is not just going to walk away from this and we will continue to fight court. But, we need your help. We are actively recruiting responsible e-liquid manufacturers and distributors to join the Coalition or contribute to the cause. The more reputable companies that join the Coalition, the less the financial burden will be for all members. Moreover it is critically important that the e-liquid industry come together in a broad coalition and make clear for the court that this law threatens the continued viability of this industry, both in Indiana and abroad.
The Coalition in also reviewing potential lawsuits in other states, as well as against FDA to be filed as soon as the Deeming Regulation is published, if we determine that is necessary.
On Wednesday April 13, 2016, the Right to be Smoke-Free Coalition filed its response to Indiana’s reply to our Motions for Summary Judgment and Permanent Injunction. Our response also addressed arguments raised in an amicus brief filed in support of the law by Indiana Vapor Company and Crown Liquors. In our response we address the points raised by the State and amici, and argue that they:
1. Failed to show that the Indiana statute only indirectly regulates e-liquid manufacturing outside of the state (we argue that, as a practical matter, the law directly regulates e-liquid manufacturing outside of Indiana in violation of the Commerce Clause of the Constitution);
2. Failed to identify a rational basis under the Equal Protection Clause of the Constitution (and the Indiana Constitution) for only regulating e-liquids manufactured for open systems, while exempting closed-systems (they only reason proffered by State, which is completely false, was that closed-system e-liquids are already regulated by FDA since most of those products are made by regulated tobacco companies);
3. Failed to cite a rational basis for regulating open system e-liquid as a “tobacco product” under the Indiana tobacco laws; and
4. Failed to cite a rational basis for only regulating retailers (i.e., vape shops) who sell e-liquid used in open systems.
Indiana has until April 20, 2016 to respond. We will keep you updated.
(1) Complaint – RSF Petition for Declaratory Judgment and Injunctive Relief
(2) Legal Brief – Memorandum in Support of RSF Motion for Partial Summary Judgment and Permanent Injunction
(3) RSF Response and Reply on Cross Motions for Summary Judgement