FDA should step up vaping enforcement efforts

Rules without accountability have little impact and are giving children easy access to illegal vaping devices

A recent Associated Press article that appeared in The Oregonian painted a grim picture as to how illegal disposable vaping devices — a favorite among children –  are running rampant on our store shelves. During my time in the Oregon Legislature, I led the charge to ban flavored nicotine vaping products as they were and continue to directly target our youth and fuel a child vaping epidemic that is still embroiling our country. While my bill did not advance, sadly the need for action has only grown. 

Smoking rates are at an all-time low according to the Oregon Health Authority, which gives us a reason to celebrate and acknowledge some good work. Unfortunately, we cannot celebrate for long because the industry has shifted their energies in a different direction, disposable e-cigarettes marketed towards our children.

At the same time that adult smoking is declining we saw exponential increases of nearly 80 percent in e-cigarette use among 11th graders between 2017 and 2019. Yet, instead of increasing efforts to get these products off the shelves, the Food and Drug Administration wants to add more banned products to the list with no plan to effectively enforce the bans that already exist. I believe that we can’t legislate by the type of delivery method; rather, we need to strongly enforce the tools we already have to protect our children from being preyed upon. We must focus our efforts solely on the cessation of youth vaping, and the FDA must prioritize stopping the sale of flavored illegal disposable vaping devices.

Disposable products began flooding the market after President Trump banned flavored vaping products in 2020. Unfortunately, the former administration failed to include disposable products in the broader ban, leaving a glaring loophole that manufacturers like Puff Bar were happy to exploit.

In August 2016, the FDA made it illegal for e-cigarette manufacturers to sell their products without an approved Premarket Tobacco Product Application (PMTA). Four years later, under then-president Trump, the FDA banned flavored e-cigarettes, but excluded disposables. This means the vast majority of vapor products currently sitting on the shelves are there illegally.

But the legality of products does not matter if the FDA chooses not to enforce its own regulations. As parents and grandparents, we know a rule is only as good as the enforcement that follows. The agency has the power to levy fines on manufacturers as well as actively pull products from stores using state and federal agents, none of which they’ve pursued with haste.

Since 2021, the FDA’s Center for Tobacco Products (CTP) has sent hundreds of warning letters to vape manufacturers letting them know their products are not approved for sale in the US. In February, the FDA finally issued fines to four vaping manufacturers, but none of them included major brands that are commonly used by young people.

While levying these fines, CTP Director Brian King said, “Holding manufacturers accountable for making or selling illegal tobacco products is a top priority for the FDA.”

Yet, according to STAT News, of the 120 letters issued to vaping companies between August 2021 and May 2022, more than 50 percent of the products named in those warnings are still being sold. These letters are only delivering empty promises to our children if they are not enforced. Preliminary results from the CDC’s latest 2022 survey confirm this, showing, e-cigarette use is only continuing to rise.

If the FDA deems fruit and candy flavored vapes a health threat to American youth, then it should prioritize resources to effectively enforce existing policies. Instead, the FDA has been focused on banning even more tobacco products – but this time aimed at adult legal users. We cannot lose focus on who needs our protection, our children who are being targeted by loopholes and lack of enforcement of the current laws.  Without effectively enforcing these bans, flavored vaping products will continue growing an ever-thriving illicit market. The FDA’s attention and resources must be laser focused on the sale of illegal, flavored vape products. 

This crisis knows no partisan, geographic or economic boundaries and our leadership and response should be no different. I hope Oregon Sens. Ron Wyden and Jeff Merkley will work to refocus the FDA and ensure they have the resources and commitment they need to get illegal disposable products off the market by prioritizing our children's health. 

-Cheri Helt

Former State Representative