Though I am Co-President of Southern California SFATA I would like to make very clear that I am writing this letter as an attorney, consultant and investment banker.
I have quietly watched the vapor industry (and in some cases consumers) for the past few months publicly hurl accusations against other companies, particularly on social media forums. These accusations seem to come in three primary forms; alleged marketing to children, bad test results for diacetyl and other “hazardous” substances and intellectual property violations.
I am requesting that those who claim they are taking these actions “for the benefit of the industry” actually think about what they are doing here. In an environment of deep hostility and in light of active attempts to shut the industry down, the result is that we are providing our opponents and challengers with the very ammunition they need to ensure this industry is regulated to death. Public shaming and witch-hunts, many of which may be without basis, will ensure that public’s perception of us remains tarnished.
Consumers absolutely need and are entitled to information about products which they use and that information should be true and valid information, not preliminary or incorrect information. The industry as a whole must become more professional handling these situations. Posting accusations in public without a full investigation, is both foolhardy and mimics the actions of our opponents.
I am suggesting that if anyone ever believes another company has done something in error, it would be mature and professional to contact them discretely and privately. Have a conversation with them. Don’t broadcast the results publicly for the world to see before a full respectful discussion has occurred and where appropriate, a detailed investigation has been carried out.
If the company seems resistant to such a discussion, ask several other industry participants to join you in the private talks and attempt to reach a resolution that includes the company itself participating in voluntary testing, providing additional test results if they exist or discussing IP violations or how their marketing might be perceived. Going public should be a last ditch effort and u8ndertaken only after the full consequences of those actions have been considered. Public statements give our enemies ammunition against the industry and may also lead to companies and individuals being sued.
Currently, there is no standardized test for diacetyl and some other hazardous substances; there are in fact several methods that may have varying results when compared side by side. In most industries, when a product comes back from initial testing with negative results, the manufacturer will have a second independent lab do another round of testing to confirm the negative results. Should that lab also have negative results, the company would take appropriate action. Should the results come back positive, the company and the two labs would work together to figure out why there was a variance and possibly a third independent lab would be brought in for additional testing. Without an industry agreed upon standardized test, it is premature to announce that a company’s E-liquids are hazardous without further examination by a second independent lab.
When it comes to the alleged marketing to minors, our industry does not do it. People within the industry may believe that another firm is doing so, but unless they are advertising their products on the Cartoon Network or in Nickelodeon magazine, that perception is strictly subjective – not objective. The reality is that many adults like both candy flavors and cartoons making such accusations in public can quickly lead the accuser to find themselves in legal hot water and unable to prove their case objectively.
Intellectual property violations, while much easier to prove than either of the prior two topics, should still be handled discretely initially.
My opinion may not be popular in the current atmosphere of “Outing” companies that don’t seem to be doing what some people think is best for the industry. However, I believe that my approach is a step in the direction of professionalizing our industry, not handing ammunition over to our enemies for their use (and thus making advocates, public relations professionals and lobbyists’ jobs MUCH harder). We can create a more collaborative environment for our industry to thrive in.
Please keep in mind that I am not suggesting that the industry hide anything from the public, but rather, that a responsible approach is taken instead of the sport of witch hunting. Consumers deserve correct and detailed facts about products they purchase, not premature information that has not been investigated. Companies are owed a chance to demonstrate that they have done the right thing or are willing to do take corrective action.
Let’s work together as an industry to make our products as good as possible, demonstrate to the world that we are professionals and show that this is not the wild frontier.
Thank you for taking the time to read this.
Mark Burton, JD CMAA