FDA vs. TPD Regulations (Vaping’s Batman vs. Superman)

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Theo Mead Contributor
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You’ve got to admit – it’s a little bit weird. Think of anything you’ve switched to because it’s healthier. Diet drinks instead of regular? Biking to work instead of driving? Ditching cigarettes for something that’s 95% safer than smoking?

The vaping industry was built on some pretty solid stuff. Hon Lik invented the e-cig in 2003 after his own father was dying from smoke-related cancers. Fast-forward 15 years, and you’re looking at an industry that is now officially endorsed by the NHS as the best possible solution to quitting smoking. Nearly 3 million Brits are vaping, and that figure sits at 20.8 million worldwide. So why all the rules? This post will look at the UK and EU’s TPD laws versus what vapers face over in the US.

Why Any Regulation At All?

This one can be argued from two sides.

  • Big Tobacco were feeling threatened – Until vaping arrived, the most that Big Tobacco had to face was admitting to their own customers that the stuff inside the packet was a killer. First came the taxes, driving up prices. Then came the packet warnings. In 2012, tobacco products couldn’t even be displayed at shop counters. But Big Tobacco still had smokers exactly where they wanted them – 100% addicted, literal “diehard” groupies who would pay anything to get their fix. Vaping basically stole their customers overnight. Making vaping harder and more expensive was Big Tobacco’s solution to stopping vapers making the switch. They lobbied, the government gave in, and TPD happened.
  • It isn’t completely unreasonable- Most industries face some kind of regulation. Honestly, it’s usually in the consumer’s interest. Food manufacturers need to list their ingredients so you know exactly what you’re buying. Got a peanut allergy or a gluten intolerance? Helpful to have it on the pack, right? If you own a laptop, tablet or smartphone, all of the hardware and casing will have been regulated for your own safety. Up until TPD, there wasn’t much in the way of labelling, testing or safety.


TPD vs. FDA- What They Are And How They’re Different


Before 2016, the Tobacco Products Directive (TPD) was busy regulating its own stuff – tobacco. In 2016 (after a lot of pushing from the playground’s big boys), the UK and EU found itself with a new set of laws, known as article 20 of the TPD.  They came into effect in May 2017. Exclusively for vaping, which has zero tobacco, these laws are ironically dictated by the Tobacco Products Directive.

With slight variations across the EU, TPD made this happen:


  • 10ml max for e-liquid bottles containing nicotine –  It was goodbye to those 120ml bottles (or even 30ml) with this law. TPD-compliant e-liquids containing nicotine are limited to a maximum size of 10ml.
  • Except for the epic “cheaper” Short Fills solution – The biggest gripe from vapers wasn’t the size. It was the price. Smaller sizes will always make prices rise. Precisely why some clever clogs came up with Short Fills. Usually 60ml bottles filled to 50ml, these bypass the TPD law as they’re at 0% nicotine. Customers get a free nic shot, mix it in and voila. Cheaper bottles back to a reasonable size.
  • Nicotine strength limits- This one was really clever. Transitioning smokers are going to need their nicotine. Making the switch usually sees vapers pick a higher nicotine strength to start with, before working their way down. The max nicotine strength of 20mg/ml max was Big Tobacco’s attempt to make vaping less appealing. “Eh, it doesn’t give me the nicotine strength I need- I’ll just stick with cigarettes.” With Short Fills though, you can technically make your e-liquid as strong as you like, but we advise that you keep it reasonable.
  • Tank size limits- S.L.O.W… clap, Big Tobacco. Yes, you made us this close to losing our nut with the max 2ml tank law, but it hasn’t slowed down vaping’s growth. TPD laws stipulate that tanks cannot be larger than 2ml. Didn’t stop the variety, though.
  • Warnings, labels, testing and age limits- If you’re vaping with nicotine, you should absolutely be warned that it’s an addictive substance, although a staggering amount of people still think that nicotine causes cancer. Nicotine does not cause cancer. TPD laws meant regulated juice, leakproof bottles, 1cm minimum nozzles, plus being at least 18 years old to purchase e-liquids. All e-liquids also now undergo emissions testing for impurities.


What About Brexit? (Not all doom and gloom)

Britain’s decision to leave the EU may well affect vaping. In July 2017, the UK government released its Tobacco Control Plan. This might allow some laxing of vaping laws, since vaping being incorporated into tobacco kind of makes no sense- the whole point of vaping is that it doesn’t contain any tobacco.

Big Tobacco are even supporting the government’s plan to deregulate vaping, although that might have something to do with them bringing out their own “Heat Not Burn” devices. You can read how “healthy” those are here.


Vaping in the US is legal, but it’s way less regulated than in the UK. That said, things are going to change. The FDA (Food and Drug Administration) is what controls, duh, food and drugs here. FDA regulations for e-cigs have been pushed forward until 2022, though. That suspiciously coincides with Big Tobacco buying into vaping, and them bringing out their own vaporizing devices. They’re hardly going to smack laws on themselves.


  • FDA is moving forward – In March 2018, the FDA’s commissioner, Scott Gottlieb suggested that e-cig regulations will become more stringent. Scott made the statement, and (in typical American style) found himself getting sued. The American Heart Association and the Campaign for Tobacco-Free Kids filed lawsuits against the FDA over the delay in e-cig regulation implementations- basically arguing that the delay puts the kiddies at risk. Speaking of…
  • Flavor bans might be on the cards – Much like the EU’s Big Tobacco lobbied against vaping (with TPD as the result), the companies in the US are also trying to find ways to “prove” that vaping is a negative deal. Tobacco flavor bans are already a thing in some states, where menthol cigarettes are illegal. This was likely due to the correlation between deprived sections of the population smoking menthol cigarettes as a cultural influence. But it might also affect vaping.
  • Suggestions of no “candy” flavors to save the kids – The FDA are being prompted by US Congress (who say “yes sir, no sir, three bags full sir” to Big Tobacco) – what for? To potentially stick bans on candy flavors that supposedly encourage kids to vape. You’d probably be looking at gummy bear or sweetie flavors.


Current FDA Laws


  • They vary from state to state – although nowhere is vaping flat-out banned. A lot of vape stores in the US are however prohibited from permitting in-store flavor tasting (thank goodness we don’t – and yes, you can pop in any time). Speaking to some US vapers, we also learned that in-store “builds” are banned in some states, like California. This means that vapers can pop in for purchases, but the store employee can’t touch your coils, wicks, or fiddle your mod to help you. And you wonder why mech mod accidents are making headlines.


The Weird Ones:


  • Free samples cannot be handed out – or shipped in exchange for customer contact info or mailing list sign-ups.
  • However, coupons and discounts are allowed – Buy one get one free and membership reward points are all allowed. That said, if a reward program offers every 10th e-liquid bottle free, that 10th bottle can only be distributed as part of a tobacco purchase. Just.. what?
  • No selling of cigarettes and e-cigs at the same time – In the state of New York, for instance, Mayor Bill De Blasio signed a bill stating that if a store sells cigarettes, it cannot also sell e-cigarettes.


The Standard Ones:


  • Age limits – In the state of California, you must be 21 to purchase e-cigarettes. It’s still 18 in places like Texas, but online purchases of e-liquids will prompt you to say “I’m 21”.
  • No vaping indoors – Much like the UK, it’s down to the discretion of the establishment, but in some states, vaping in common areas outside buildings is similar to smoking. That can mean needing to be 100 feet from a building for your clouds.


Impact On Consumers and Businesses

The aim of regulation (aside from safety) was to slow the vaping industry down. While TPD and FDA regulations can be frustrating, and the need for manufacturers to apply for licenses six months in advance slows growth, the stats don’t lie. More and more people are ditching the cigs for something way better- the vape.

You didn’t stop buying bananas because they come with a label that says “banana.” Same deal with vaping- where Vape Superstore have got all the banana in the world.

This is a sponsored post.

Theo Mead