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.
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.