CNN: U.S. Flavored Vape Ban Takes Effect Today, Impact Analysis

On February 7, CNN reported that a nationwide vaping policy in the U.S. took effect today, leading to the removal of many flavored vaping products from the market.

Officials from the Trump administration announced in September that they were developing such a policy, later referred to as the flavor ban. Part of the reason was that the policy, when initially announced, would ostensibly strip all flavors from the market except for tobacco. At that time, officials stated that the policy would be finalized within weeks.

In the following months, many lawmakers and health organizations criticized the government for not finalizing the policy, while reports indicated that the policy deviated from its original commitments.

The final policy announced on January 2 now includes many exceptions, which the FDA stated was a result of new data regarding commonly used products among children. However, critics called it a hollow policy that ultimately diluted the flavor ban.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, said in a statement on Wednesday that the final policy is riddled with loopholes, allowing thousands of flavored vaping products to remain available.

He added that this policy will not stop the popularity of youth vaping that is addicting our generation of kids.

What is the policy?

This is not a law and is not binding. Moreover, it does not change the fact that vaping products are still being sold illegally in the market, with no one obtaining premarket authorization from the FDA.

Bonnie Halpern-Felsher, founder and executive director of the Stanford Tobacco Prevention Toolkit, said this is not actually a ban.

She stated: This is enforcement of what they already have on the books.

According to the FDA, the new policy represents the agency's current thinking and describes how we intend to prioritize enforcement resources.

For many reasons, the agency can and has pursued manufacturers and retailers of vaping products, including advertising and sales to minors. These actions include warning letters, fines, seizures, and injunctions.

However, the FDA does not have unlimited resources to pursue companies that violate the law.

The policy states: The FDA will make enforcement decisions based on specific circumstances and acknowledges that it cannot take enforcement action against every tobacco product sold illegally and must make decisions accordingly.

What happened?

Under the policy, the FDA plans to prioritize the removal of vaping products with flavors other than tobacco and menthol from the market.

Pods are described as any small closed system (sealed or unsealed) designed to fit inside a vaping pen or work as part of it.

The policy does not include disposable vapes, nor does it cover open-system vapes and their respective e-liquids, which come in various flavors.

The FDA stated that this is a way to track products commonly used by children while still keeping the door open for adult smokers who may want to quit.

The agency noted that many pod-based vapes are easy to hide, can be used discreetly, have high nicotine content, and can be mass-produced.

The FDA added that their immediate availability may lower the entry barrier for youth.

Mitch Zeller, director of the FDA's Center for Tobacco Products, said in an email statement that the policy will also focus enforcement on any vaping products that target minors or for which manufacturers have not taken appropriate measures to prevent harm to minors.

The FDA revealed in September that 27.5% of high school students were users of vaping products in 2019, up from 20.8% in 2018 and 11.7% in 2017. Researchers estimate that over 5 million middle and high school students in the U.S. currently use vaping products, with 970,000 using them daily.

Zeller said: Let’s be clear, under this policy, if we see products targeting kids, we will take action.

What happens next?

If all goes as planned, flavored vaping products will no longer be available on shelves or online in the U.S., except for cigarettes and menthol.

However, in reality, this will require retailers to recognize and cooperate on the policy's implementation and which products are affected.

According to an email from an FDA spokesperson, while we expect responsible industry members to stop manufacturing, distributing, and selling unauthorized vaping products, the public may continue to see certain types of products prioritized by the FDA in the market as the agency works to hold manufacturers and retailers (including brick-and-mortar and online stores) accountable.

The email added that the agency will begin inspecting and monitoring manufacturers and retailers to ensure compliance.

Many leading vaping companies have previously stated they would cooperate, and in some cases have already removed certain flavors from the market. For example, Juul has previously stopped selling flavors like menthol, mango, cream, and cucumber, leaving only tobacco and menthol.

The only way to allow these flavored products back on the market is to obtain premarket authorization from the FDA after assessing their impact on public health.

Ultimately, all vaping products will need to undergo the same premarket review. The current deadline is set for May.

Products not included in the FDA's newly issued policy may remain on shelves for up to a year while the agency considers their applications.

Executives at the House Energy and Commerce Committee hearing stated that some companies, including Logic and Reynolds, the manufacturers of Vuse products, have submitted applications.

The FDA has not disclosed the total number of applications received.

How will this change vaping habits?

However, it remains uncertain how the new policy will affect vaping habits among adults and children. Halpern-Felsher from Stanford University stated that there is simply not enough data to know.

For instance, will young people be more likely to use menthol? Or will they seek flavors in pod-based vapes or disposables?

Halpern-Felsher believes that the likelihood of kids completely stopping smoking is much lower.

She added that, moreover, kids are already using these products.

She said: Young people have been using open-system and disposable products long before the FDA announced it would regulate them. I have been seeing the use of puff bars for months.

Puff bars are disposable vapes that come in flavors like "pink lemonade," "blue razz," and "OMG (orange, mango, guava)."

She added that Halpern-Felsher shared a photo with CNN showing a range of vaping products confiscated at a school in Northern California before the FDA announcement, including some puff bars that contained more e-liquid than Juul pods.

CNN reached out to the manufacturers of Puff Bars for comment but did not receive a response. The company stated on its website that it opposes selling its products to minors and urges retailers to comply with regulations, including checking IDs and not providing free samples.

The FDA stated that, aside from youth issues, it is also closely monitoring the increase of black market products following the removal of other products. The agency also stated that its policy should have minimal impact on small manufacturers, which is part of a larger concern reiterated by President Trump last year.

In December, President Donald Trump told reporters: We will protect our families, we will protect our kids, and we will protect this industry.

Experts are also focused on adult users of tobacco products: will they be satisfied with their choices? Will some revert to smoking cigarettes or become dual users?

For the FDA, it can always correct issues, especially when new trends are seen among youth.

Zeller stated that the agency will continue to closely monitor data regarding youth use of all vaping products and adjust our enforcement priorities to address youth use issues as necessary.