The Strange and Complicated Future of the E-Cigarette Industry

Editor’s Note: This post is brought to you by Camille Wilson, a patent attorney in Jacksonville, Florida, with extensive experience researching e-cigarettes. Enjoy!

Last January, in 2015, I[1] wrote about the patent evolution of e-cigarettes up until that point. I also made some general predictions about the e-cigarette industry, mostly favoring Big Tobacco. Only a short twenty months later, the entire landscape is about to change…and it will most likely favor Big Tobacco, in one way or another.

But why the shift?

In May 2016, the FDA finalized a rule (a very dense 134 page rule, to be exact) extending their regulatory power established by the Tobacco Control Act in 2007 to cover all tobacco products, which now includes e-cigarettes. That rule officially went into effect on August 8, 2016, starting the clock for the entire industry to disprove that their products are “not appropriate for the protection of public health.” (“Deeming Tobacco Products To Be Subject to the Federal Food, Drug, and Cosmetic Act”, as Amended by the Family Smoking Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco Products and Required Warning Statements for Tobacco Products, 81 Fed. Reg. 28975, May 10, 2016) (Amending 21 C.F.R. §§ 1100, 1140, and 1143). I use the term “disprove” because the entire rule seems to presume that all e-cigarette products do not protect public health; so, the onus is placed on the manufacturers to prove otherwise.

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James Dunworth’s Interview with Herbert A. Gilbert, Inventor of the E-Cigarette

Last January, we brought you a post from Camille Higham, a patent attorney in Jacksonville, Florida. She discussed “The Strange and Complicated History of Patenting the E-Cigarette,” and argued that “the increased popularity [of e-cigarettes] has prompted ample innovation. And as the industry becomes more competitive, the patent applications will continue to narrow, and the companies who prepared for this vaping revolution early on will have a big advantage over pop-ups seeking to capitalize on the opportunity.”

Ten months after this post was published, we received a note from reader James Dunworth, who clued us into an interview he had conducted with Herbert Gilbert, inventor of the e-cigarette. Dunworth generously allowed us to republish his interview here. Many thanks to James Dunworth, and we hope you enjoy it.

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The Strange and Complicated History of Patenting the E-Cigarette

Editor’s Note: Today’s post is brought to you by Camille Higham, a patent attorney in Jacksonville, Florida, with extensive experience researching e-cigarettes. 

About a year ago, I wrote about e-cigarettes in a blog that is woefully neglected now. At that time, I thought e-cigarettes may fall between a novelty and a passing fad. Now I am still skeptical that e-cigarettes will ever supplant traditional cigarettes, primarily because of how deeply tobacco is entrenched in our history, for better or worse. E-cigarettes are undeniably increasing in popularity, and if they do edge out tobacco-based cigarettes, ironically, it is the Big Tobacco companies, with their deep pockets and market influence, who may be best equipped to make that happen.

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