University of Miami Law Review


Societal innovation is frequently triggered by need. Year after year, novel technologies are created by entrepreneurs who seek to find a more effective, efficient, or less dangerous way of accomplishing a specific goal. Oftentimes, these new technologies enter the marketplace bringing with them a host of uncertainties concerning both their performance and effect on consumer activity. Despite these inevitable uncertainties, new technologies play a vital role in advancing society when appropriately controlled. Indeed, while the appropriate levels of control may vary across industries and technologies, one principal remains constant amongst the mall: the obligation to balance risk with reward. The need for such a delicate balancing act is no more evident than in the case of e-cigarettes and vaporizer products. Over the last two decades, innovators and entrepreneurs alike have sought to develop healthier solutions aimed at reducing the overwhelming number of fatalities and life-threatening illnesses associated with one of America’s most prevalent killers, the consumption of traditional tobacco cigarettes. While the undeniable benefits of these innovations have been formally acknowledged by both the FDA and Congress, the current federal regulatory framework that controls their availability to consumers operates as a hindrance to innovation and industry growth rather than an effective means of protecting the public’s health. This Note sets out to analyze the turbulent rise and fall of government and consumer sentiment surrounding these products and evaluates the effectiveness of the current FDA regulatory framework, which functions to constrain the diffusion of what may be one of the next substantial public health benefits. Specifically, this Note explores the potential for a more effective and elastic regulatory framework which incorporates the dual use of federal and state regulatory measures to strike an optimal middle ground position between minimizing uncertain public health risks while simultaneously not discouraging innovation and industry growth. In the final analysis, officials tasked with developing sufficient regulatory measures should seek to take calculated risks in the interests of promoting innovation. After all, it should come as no surprise that the most promising technological tobacco alternative emerged from an unregulated environment.