There’s deepening confusion over the status of non-nicotine liquids in the USA. With the FDA’s strict new regulations due to go into force on the 8th of August, vendors still don’t know if they’ll be allowed to sell the increasingly popular nicotine-free options. The question is whether or not a liquid that doesn’t contain nicotine meets the definition of a tobacco product. Common sense says not, as these juices don’t contain any tobacco derivatives, but common sense doesn’t have a lot to do with this increasingly vague definition. The FDA has even classed items of hardware as tobacco.

In response to a recent question about whether nicotine-free liquids will require the expensive and time-consuming pre-market authorisation process, the FDA responded with 1,300 words of dense and almost incomprehensible legalese. While it’s not easy to draw any conclusions about the actual legal situation the FDA’s logic appears to be that nicotine-containing liquids are a tobacco product, therefore the hardware used to vape them is also a tobacco product, so any non-nicotine liquid used in that hardware becomes a tobacco product too.

As far as can be worked out from their response the correct solution is to submit a pre-market authorisation request, costing roughly a million dollars, and the FDA will then decide whether authorisation is required on a case by case basis. The result is likely to be confusion and uncertainty for the industry.