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FDA is getting ready to go after non-compliant manufacturers

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    With registration and product listings due soon from e-liquid and other vape manufacturers, the FDA is making plans to inspect facilities — and to enforce their rules.

    Any business that makes, packages, repackages, or labels vaping products is considered a manufacturer, and all are required to register all facilities with the federal agency. After the third delay announced last week, registration and product listings are now due on Oct. 12.

    A vape shop is also considered a manufacturing facility if employees modify products, refill closed system products, or building coils. Assembling devices that are intended to be used together, repairing broken products, and showing customers how products work do not qualify as manufacturing.

    Vape shops and retailers that don’t manufacture or modify products are not required to register or provide product listings. Neither are foreign manufacturers — for now anyway.

    But vape shops that make e-liquid on site, and all manufacturers of e-liquid and other vape products, will be subject to FDA enforcement of the rules after the deadline. Facilities that aren’t registered, or make products not listed with the FDA, or make products they can’t prove were in production before Aug. 8, 2016, are subject to penalties for selling “misbranded” or “adulterated” products.

    A finding of intentional violation of the rule against adulterated products can result in fines up to $250,000 per violation. Adulterated products would also be seized, and manufacturers could also be subject to state and local penalties too.

    No one knows what the FDA intends to do. The agency may not enforce the rules aggressively right away — or even at all. The new leadership seems to have some sympathy for the vaping industry.

    On the other hand, the FDA is still engaged in public relations campaigns to demonize vaping, and doesn’t seem particularly thrilled with the prospect of thousands of flavored e-liquid products being available. With more than two million product listings in its system already, if the agency wants to enforce, it will have to choose a sample of shops and enforce selectively, making examples of some offenders.

    Whatever enforcement strategy the FDA is planning, it is planning something. The deeming regulations are still around, and vape businesses are expected to comply with them.

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