On February 15, 2017

E-cigarette seller faces $50,000 fine over marketing

By Adam Federman, VTDigger

CASTLETON—The owner of an e-cigarette store in Castleton says he will close his business rather than pay a $50,000 civil penalty the attorney general’s office is seeking.
Adam Tredwell, owner and president of Vermont Vapor, said claims that he violated the Consumer Protection Act’s prohibition against “unfair or deceptive acts and practices in commerce” are unfounded.
Tredwell provided VTDigger a copy of a proposed settlement his lawyer received Feb. 1 from the attorney general’s office. It alleges that Vermont Vapor, through its website and Facebook page, repeatedly made misleading or false claims about the virtues of using e-cigarettes.
The attorney general’s office says Vermont Vapor “makes smoking cessation claims” on its website even though e-cigarettes are not approved by the Food and Drug Administration as a tool to help consumers quit smoking. Vermont Vapor was also accused of claiming “e-cigarettes don’t generally fall under smoking bans” and providing free samples in its store, a practice now banned under federal law.
The state also took issue with Tredwell’s description of himself as “Dr.” even though he does not have a medical degree. Tredwell, who disputes all of the AG’s claims, said he has a law degree from Temple University and started his company in 2009 while he was still in school. “If you have a doctorate that’s what ‘doctor’ means,” Tredwell said. “I never claimed I was a medical doctor.” The proposed agreement “in lieu of instituting an action or proceeding against Vermont Vapor Inc.” calls for the company to end the alleged violations and pay a $50,000 penalty.
The attorney general’s office declined to comment on the settlement offer or acknowledge that an investigation was underway, but did provide information on the vaping industry and the impact of e-cigarettes on public health.
“This is an area that is increasingly under scrutiny by federal regulators,” said Christopher Curtis, chief of the public protection division in the attorney general’s office. “Certainly states have an interest in protecting the health and welfare of their citizens, and consumers have a right to know what is in a given product and what the long-term implications of use may be.”
E-cigarettes deliver a vapor of flavored liquids, nicotine and other ingredients. Use of the devices, especially among teenagers, has risen dramatically over the past five years, although their health impacts are unclear. In August the FDA finalized a rule to regulate e-cigarettes like any tobacco product.
Last year the Legislature passed a law that treats e-cigarettes like tobacco for the purposes of smoking bans. However, an effort to tax the sale of e-cigarettes like tobacco fell short.
For years the FDA has been advising e-cigarette companies not to make smoking cessation claims, said American Vaping Association President Greg Conley. However, he couldn’t recall anyone in the industry being targeted for doing so.
“In terms of going after a company for daring to allow customers to truthfully tell their story, this is the first instance of that,” Conley said.
Tredwell said he first learned of the attorney general’s investigation in early January when he received a request for documents and information about the company. Through his attorney, Tredwell refused to comply with most of the state’s requests on the grounds that they were “unduly burdensome” or would result in the disclosure of proprietary information.
As long as he’s been in business, he said, it has been unlawful to advertise e-cigarettes as a smoking cessation product. “We don’t anywhere, and we never have,” Tredwell said.
In the FAQ section of its website Vermont Vapor addresses the question directly: “The electronic cigarette is an alternative to smoking and is not a smoking cessation device. Some people have quit smoking using the electronic cigarette but we make no such claims as to effectiveness for that purpose and e-cigs are not sold for that purpose.”
Elsewhere on the site Vermont Vapor asserts that e-cigarettes are “much better for a person than smoking” and “a new alternative to smoking.”
Other businesses describe e-cigarettes as an alternative to smoking.
Valley Vape, an e-cigarette lounge and juice bar in Essex Junction, says on its website its mission is to “help you quit smoking cigarettes.”
NEK Vapor, which has stores in Lyndonville and Newport, says it opened in 2014 to “provide smoking alternatives to people looking for an alternative to smoking cigarettes.” However, the company points out, “E-Cigarettes are not considered cessation devices and NEK Vapor does not make any claims that you will be able to quit cigarettes if you use our products.”
The public health impacts of e-cigarettes remain unclear even as use, especially among teens, continues to rise. According to the FDA, between 2011 and 2015 e-cigarette use among high school students jumped from 1.5 percent to 16 percent.
An October 2015 advisory from the Vermont Department of Health warned of the dangerous effects of nicotine on the cardiovascular and central nervous systems and referred to an FDA study suggesting that e-cigarette samples contained tobacco-specific nitrosamines and toxic chemicals.
In a more recent report the surgeon general’s office said e-cigarette use among teens could reverse gains made to combat smoking over the last couple of decades.
The current enforcement action is not Vermont Vapor’s first interaction with personnel connected with the attorney general’s office.
Tredwell said he learned sometime in 2015 that Assistant Attorney General Toni Hamburg-Clithero had started an online e-cigarette business under the name Vermont Vapors. Tredwell’s lawyer sent her a cease-and-desist letter, arguing the name was so similar to his company’s that it was a violation of trademark law.
Correspondence Tredwell supplied to VTDigger shows that Hamburg-Clithero disagreed and requested $1,000 to cover the costs of a new domain name and rebranding of her company. Tredwell threatened to sue and says he never heard back.
The Vermont Vapors website and Facebook page no longer exist. Reached by phone, Hamburg-Clithero said she wasn’t sure “if it’s appropriate to talk about it.”
Tredwell said he has no intention of signing the enforcement agreement or paying the $50,000 fine. He said he plans to retire and leave Vermont for good.
In a letter to his customers announcing that the store was closing, he wrote, “I’ve fought the good fight for eight years and I’m not fighting anymore. I quit.”

 

Submitted Photo
Vermont Vapor in Castleton is closing because of an enforcement action by the attorney general’s office, according to owner Adam Tredwell.

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