This is not a legal document. It is solely a brief summary of key elements of the new Washington State and federal vapor product laws, not a full representation of either law. Those seeking legal
certainty should consult with an attorney and review the text of RCW 70.345 at http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Passed%20Legislature/6328-S.PL.pdf
and the text of and comments on the FDA rule at https://www.fda.gov/TobaccoProducts/Labeling/RulesRegulationsGuidance/ucm394909.htm.
Page 1 of 7
DOH 340-286 Aug 2017
Summary of Washington State and Federal Vapor Product Regulations
August 2017
The following is a brief summary of the 2016 Washington State law (RCW 70.345) and FDA deeming rules related to e-cigarettes, vapor
products, and other tobacco products. Additionally, this document provides an update of the FDA revisions of extended timelines to submit
tobacco product review applications for newly-regulated products that were on the market as of August 8, 2016. (Note: Starting on page 2,
key elements of each regulation are listed in alphabetical order for quick reference.)
WASHINGTON STATE LAW RCW 70.345 FDA DEEMING RULE
LAWS/RULES
Creates a new chapter within Title 70 RCW, alongside RCW 70.155
(Tobacco - Youth Access) and other statutes. Also amends 70.155, 26.28,
and other chapters of the RCW.
Amends Title 21 of the Code of Federal Regulations (CFR) which contains the
FDA’s rules. Extends the federal Family Smoking Prevention and Tobacco Control
Act of 2009 (“Tobacco Control Act”) to electronic nicotine delivery systems/ENDS
(including all vapor products with nicotine), hookah tobacco, cigars, pipe
tobacco, dissolvables, and novel future products. FDA may now regulate these
products just as it does cigarettes, cigarette tobacco, roll-your-own tobacco,
smokeless tobacco, and other tobacco products.
DEFINITIONS
Vapor product
Any noncombustible product that may or may not contain nicotine and
that employs a heating element, power source, electronic circuit, or other
electronic, chemical, or mechanical means, regardless of shape or size that
can be used to produce vapor or aerosol from a solution or other
substance.
Includes any electronic cigarette, electronic cigar, electronic cigarillo,
electronic pipe, or similar product or device and any vapor cartridge or
Tobacco product
Any product made or derived from tobacco, including nicotine, that is not a
“drug,” “device,” or combination product under the FD&C Act.
The FDA regulations only cover vapor products that contain nicotine. This includes
components or parts that are used for the consumption of a tobacco product,
whether or not the component or part itself contains tobacco or nicotine.
This is not a legal document. It is solely a brief summary of key elements of the new Washington State and federal vapor product laws, not a full representation of either law. Those seeking legal
certainty should consult with an attorney and review the text of RCW 70.345 at http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Passed%20Legislature/6328-S.PL.pdf
and the text of and comments on the FDA rule at https://www.fda.gov/TobaccoProducts/Labeling/RulesRegulationsGuidance/ucm394909.htm.
Page 2 of 7
DOH 340-286 Aug 2017
WASHINGTON STATE LAW RCW 70.345 FDA DEEMING RULE
other container that may contain nicotine in a solution or other form that is
intended to be used with or in an electronic cigarette, electronic cigar,
electronic cigarillo, electronic pipe, or similar product or device.
"Vapor product" does not include any product that meets the definition of
marijuana, useable marijuana, marijuana concentrates, marijuana-infused
products, cigarette, or tobacco products.
For purposes of this subsection (19), "marijuana," "useable marijuana,"
"marijuana concentrates," and "marijuana-infused products" have the same
meaning as provided in RCW 69.50.101.
ADVERTISING
No provision. Warning labels required on “covered tobacco product” advertising: WARNING:
This product contains nicotine. Nicotine is an addictive chemical.
Need FDA approval for health claims.
AGE OF SALE AND
PURCHASE
Age of sale/gift – Sales/gifting only to those 18 and over. This has been in
state law for two years.
Age of possession, purchase – Must be 18 or older. This is new to the state
law.
Age of sale/gift – Sales/gifting only to those 18 or over (FDA requires check of
anyone 27 years old and younger).
Age of possession, purchase – Must be 18 or older.
CHILD RESISTANT
PACKAGING
Liquid nicotine containers must satisfy the child-resistant effectiveness
standards established by the Poison Prevention Packaging Act of 1970,
and enforced by the federal Consumer Product Safety Commission.
The FDA has also issued a draft guidance on premarket applications that addresses
child-resistant packaging.
COUPONS
No coupons for free vapor products without purchase. No provision.
This is not a legal document. It is solely a brief summary of key elements of the new Washington State and federal vapor product laws, not a full representation of either law. Those seeking legal
certainty should consult with an attorney and review the text of RCW 70.345 at http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Passed%20Legislature/6328-S.PL.pdf
and the text of and comments on the FDA rule at https://www.fda.gov/TobaccoProducts/Labeling/RulesRegulationsGuidance/ucm394909.htm.
Page 3 of 7
DOH 340-286 Aug 2017
WASHINGTON STATE LAW RCW 70.345 FDA DEEMING RULE
EFFECTIVE DATES
Most provisions went into effect on June 28, 2016
The licensing provisions, sections 5-10 and 28 went into effect 30 days after
the Liquor and Cannabis Board prescribed the form for a license
application. The application form will be available on July 1, 2016. Thirty-
one days later, August 1st, statutes relating to licenses, fees and penalties
will go into effect. The online vapor products license application is available
July 1st, making the new licenses, fees, and penalties effective on August
1st.
Provisions that automatically apply to newly deemed products, such as the
bans on free samples, along with minimum age, identification, and vending
machine restrictions, are effective on August 8, 2016.
Health warning requirement is effective May 10, 2018.
Products not already on the market by February 15, 2007 must obtain premarket
approval.
Update July 28, 2017: The FDA extended timelines to submit tobacco product
review applications for newly-regulated products that were on the market as of
August 8, 2016. Applications to market newly-regulated combustible products,
such as cigars, pipe tobacco, and hookah tobacco, must be submitted by August 8,
2021. Applications to market newly-regulated non-combustible products, such as
electronic nicotine delivery systems (ENDS) or e-cigarettes, must be submitted by
August 8, 2022.
INTERNET OR
MAIL SALES
May only occur with proof that purchaser is 18 years and older. Sellers must
obtain a delivery sale license, and provide notice of the minimum age on
their order form. Then, before accepting a purchase or order, they must
verify the buyer’s full name, birth date, and residential address through a
third-party database that is regularly used by government and businesses
to verify age and identity. Further, they may only accept payment via a
credit or debit card in the purchaser’s own name, and before shipping,
must have the purchaser certify or declare that he or she is over 18.
Prohibit internet sales to minors, but does not require age verification.
LABELING
Nicotine liquid containers must be labeled with the following: (a) Warning
regarding the harmful effects of nicotine; (b) warning to keep the vapor
product away from children; (c) warning that vaping is illegal for those
Warning labels on “covered tobacco product” packages (Does not include amount of
nicotine in the product.):
This is not a legal document. It is solely a brief summary of key elements of the new Washington State and federal vapor product laws, not a full representation of either law. Those seeking legal
certainty should consult with an attorney and review the text of RCW 70.345 at http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Passed%20Legislature/6328-S.PL.pdf
and the text of and comments on the FDA rule at https://www.fda.gov/TobaccoProducts/Labeling/RulesRegulationsGuidance/ucm394909.htm.
Page 4 of 7
DOH 340-286 Aug 2017
WASHINGTON STATE LAW RCW 70.345 FDA DEEMING RULE
under the legal age to use the product; (d) the amount of nicotine in
milligrams per milliliter of liquid and the total volume of liquid in milliliters.
Manufacturers of closed system nicotine containers that make an annual
disclosure to DOH under Section 13(2) need not include (d).
This requirement expires on a date to be designated by the LCB, and the
expiration is generated when FDA regulations begin to mandate warning or
advertisement requirements.
WARNING: This product contains nicotine. Nicotine is an addictive
chemical.
Health warning requirement is effective May 10, 2018.
Update July 28, 2017: The FDA extended the labeling requirements on nicotine-
containing vapor products to August 10, 2018.
LICENSURE
Retailers, distributors, and delivery sellers are required to have vapor product
licenses. They may purchase tobacco or vapor license separately ($175 each)
or together ($250) – This is the first increase in tobacco licensing fees since
1993.
Funds go into the Youth Tobacco and Vapor Products Prevention Account
(formerly the Youth Tobacco Prevention Account), with portions to Liquor
and Cannabis Board (LCB) for enforcement, and to community youth tobacco
and vapor product prevention activities.
No license requirement, but see “Manufacturing” topic below.
MANUFACTURING
Labeling requirements apply to a manufacturer or distributor that sells, offers
for sale, or distributes vapor products.
Retailers who mix vapor products (containing nicotine) in their store are
considered manufacturers. FDA requires manufacturers to obtain approval of all
products that were not already on the market on February 15, 2007, obtain
approval of new products/devices, and report ingredients in their products.
PENALTIES
Minors – Class 3 Civil penalty or 4 hours community service.
Retailers – For violation within 3 year period of the most recent offense:
$200 first offense; $600 second offense; $2,000 third offense; $3,000 fourth
and subsequent offense; License revoked for five years for the fifth
Violation of rule provisions may result in warning letters, criminal prosecution,
civil money penalties, injunction, seizure, and/or no-sale orders.
This is not a legal document. It is solely a brief summary of key elements of the new Washington State and federal vapor product laws, not a full representation of either law. Those seeking legal
certainty should consult with an attorney and review the text of RCW 70.345 at http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Passed%20Legislature/6328-S.PL.pdf
and the text of and comments on the FDA rule at https://www.fda.gov/TobaccoProducts/Labeling/RulesRegulationsGuidance/ucm394909.htm.
Page 5 of 7
DOH 340-286 Aug 2017
WASHINGTON STATE LAW RCW 70.345 FDA DEEMING RULE
violation.
Clerks – Gross misdemeanor (criminal penalty) though enforcement officer
may limit to $100 for first offense; $200 for each following offense.
Mail and Internet Sales – Violations of the mail and internet sales
provisions are violations of the consumer protection act, and expose the
violator to an action by the Attorney General seeking injunctions,
restitution, civil penalties of up to $2000 per violation, and recovery of
costs and fees.
PRE-MARKET
PRODUCT
REVIEW
No provisions. No new products after August 2016 without premarket tobacco
application (PMTA) to FDA.
Applications for newly-regulated combustible products (such as cigars,
pipe tobacco, and hookah tobacco) must be submitted by August 8,
2021.
Applications for newly-regulated non-combustible products (such as
electronic nicotine delivery systems (ENDS) or e-cigarettes) must be
submitted by August 8, 2022.
PREEMPTION OF
LOCAL
ORDINANCES
No local regulation of promotions or retail sales.
No local licenses other than general business licenses.
No local taxes or fees other than general business taxes or fees.
Local ordinances may regulate the use of vapor products in outdoor
public places in areas where children congregate, such as schools,
playgrounds and parks.
State and local authority is preserved, except as noted below.
No State or political subdivision of a State may establish (or continue) any
requirement that is different from or in addition to any requirements of the
Tobacco Control Act relating to:
• Tobacco product standards;
• Premarket review;
• Adulteration;
This is not a legal document. It is solely a brief summary of key elements of the new Washington State and federal vapor product laws, not a full representation of either law. Those seeking legal
certainty should consult with an attorney and review the text of RCW 70.345 at http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Passed%20Legislature/6328-S.PL.pdf
and the text of and comments on the FDA rule at https://www.fda.gov/TobaccoProducts/Labeling/RulesRegulationsGuidance/ucm394909.htm.
Page 6 of 7
DOH 340-286 Aug 2017
WASHINGTON STATE LAW RCW 70.345 FDA DEEMING RULE
Local ordinances may regulate the use of vapor products in indoor public
places as long as they do not allow use of vapor products where state law
forbids it.
• Misbranding;
• Labeling;
• Registration;
• Good manufacturing standards; or
• Modified risk tobacco products.
SAMPLING &
TASTING
Allows tasting in licensed, adult-only retail premises. Tasting of vapor
products is limited to products without nicotine unless the customer
explicitly consents to taste a vapor product with nicotine. (Note: The FDA
has banned free samples or tasting of nicotine-containing vapor products.)
Prohibits tasting or sampling of tobacco products, including vapor
products that contain nicotine. Product may be held, smelled and
touched, but not inhaled or consumed.
TAX
None. None.
SIGNAGE
Requires retailers to post signs provided by the Department of Health stating
that it’s illegal to sell to minors:
The sale of vapor products to persons under age eighteen is strictly
prohibited by state law. If you are under age eighteen, you could be
penalized for purchasing a vapor product; photo ID required.
For retailers also licensed to sell cigarettes or other tobacco products, the
Liquor and Cannabis Board will distribute a sign that warns about selling
either tobacco or vapor products to those under 18.
No requirement for signage in schools, but DOH has distributed school
signs that say schools are “electronic cigarette and vapor-free.”
No provision.
USE
Outdoor – Prohibited on the property of child care facilities (except in- home
child care facilities when kids are not present), on school property, and in
No provision.
This is not a legal document. It is solely a brief summary of key elements of the new Washington State and federal vapor product laws, not a full representation of either law. Those seeking legal
certainty should consult with an attorney and review the text of RCW 70.345 at http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Passed%20Legislature/6328-S.PL.pdf
and the text of and comments on the FDA rule at https://www.fda.gov/TobaccoProducts/Labeling/RulesRegulationsGuidance/ucm394909.htm.
Page 7 of 7
DOH 340-286 Aug 2017
WASHINGTON STATE LAW RCW 70.345 FDA DEEMING RULE
(IN PUBLIC
PLACES)
playgrounds between sunrise and sunset when at least one child under 12 is
present. No other state prohibitions. Local jurisdictions may regulate use in
outdoor public places where children congregate, such as schools, and
playgrounds.
Indoor – Prohibited in schools, within 500 feet of schools, on school buses,
in elevators, and in child care facilities (except in-home childcare facilities
when no kids are present). Local jurisdictions may regulate indoor use, but
cannot allow use in places where state law bans it.
Note that the bill language on use in public places is not part of, and did not
amend, RCW 70.160, the state Smoking in Public Places law.
VENDING
MACHINES/SELF-
SERVICE
No self-service displays (tobacco products are not subject to this
prohibiton).
No vending machines except in adult-only stores with signs posted at all
entrances stating that minors are prohibited.
No self-service displays.
No vending machine sales unless in a facility where no person under 18 is present or
permitted to enter at any time.
ONLINE
RESOURCES
WA DOH Tobacco page:
http://www.doh.wa.gov/YouandYourFamily/Tobacco
WA Liquor & Cannabis Board:
http://lcb.wa.gov/vape/regulating-vapor-products
Complete Deeming Rule:
https://federalregister.gov/a/2016-10685
FDA Tobacco Regulation page:
http://www.fda.gov/tobacco
FDA Deeming Rule Overview:
https://www.fda.gov/downloads/TobaccoProducts/GuidanceComplianceRegulatory
Information/UCM501234.pdf
For persons with disabilities, this document is available on request in other formats. To submit a request, please call 1-800-525-0127 (TDD/TTY 711).
