Why Should Fruit- and Mint-Flavored E-Cigarettes Not Be Banned in the US?

Dr. Yang Aoyu from the Zheng Mingwei lawyer team at Beijing Zhongyin (Shenzhen) Law Firm participated in an online hearing held by the FDA's Center for Tobacco Products on August 22, 2023, from 10 PM to 3:30 AM Beijing time, regarding the formulation of a five-year strategic plan. They published two comments in the Federal Register, with the second comment primarily arguing that flavored (fruit, ice cream, etc.) and mint e-cigarettes should not be hastily banned.

Most of the 5.5-hour discussion during the August 22 hearing focused on whether flavored e-cigarettes and mint e-cigarettes should be banned.

Most public welfare organizations, university research centers, medical research institutions, healthcare professionals, and parents believe that flavored e-cigarettes and mint e-cigarettes should be banned due to their appeal to youth and potential harm to public health. Some research institutions and medical researchers provided reports indicating that flavored e-cigarettes and mint e-cigarettes pose health risks to youth due to the addictive nature of nicotine. Only African Americans and police do not support the ban on flavored and mint e-cigarettes. (See "Shenzhen Lawyers Participate in FDA Regulatory Conference, Providing Comments for E-cigarette Companies Regulatory Relief")

The Zheng Mingwei team argues in their comments submitted to the FDA that these studies have significant logical flaws. For example, Professor John Pierce of public health conducted a four-year study from 2014 to 2017 for his article "Use of E-cigarettes and Other Tobacco Products and Progression to Daily Smoking". This study is not only short in duration and small in sample size, but it also fails to accurately reflect the rapidly evolving situation of e-cigarette products, raising doubts about its validity as a reference for decision-making in 2023.

The real issues the FDA should investigate are the long-term substitution effects, namely: 1. Are flavored and mint e-cigarettes less harmful than traditional cigarettes? 2. If the first point is established, do flavored and mint e-cigarettes encourage more smokers to continue using e-cigarettes instead of reverting to traditional cigarettes, or do they allow former smokers to use e-cigarettes as a complete or partial substitute for traditional cigarettes? So far, there is no strong evidence indicating the impact or substitution effect of flavored and mint e-cigarettes on young users in the next 5 to 10 years, indicating a lack of research on the long-term substitution effects of e-cigarettes.

It is remembered that there have been various studies on the harm of mobile phone radiation to the human body in the mobile phone field. Some of these studies were funded by mobile phone manufacturers, and some yielded results favorable to mobile phone manufacturers. Currently, Chinese e-cigarette companies are also in a position to support similar research. Initiating such research would provide the FDA with more reasons to respond to various pressures; the FDA may temporarily refrain from making a final decision on flavored and mint e-cigarettes, giving e-cigarette companies a window to continue sales. On the other hand, if long-term research conclusions favor flavored e-cigarettes, it will ultimately lead to a situation where research reports counter other research reports.

From the current research practices in various countries, there are various voices. Most research reports in the UK are favorable to e-cigarette sales, which has influenced government decisions, making the UK the second-largest e-cigarette market in the world. Similarly, the long-term substitution effect research on e-cigarettes in the US is worth the attention, support, and participation of Chinese e-cigarette companies.

Conversely, if the FDA bans flavored and mint e-cigarettes, it is expected to lead to a sharp decline in export sales of Chinese e-cigarette companies, and the US will influence policy decisions in other countries. The losses caused will be greater than the costs of supporting research.

Conclusion:

If Chinese e-cigarette companies want to develop sustainably and avoid a sharp decline in sales due to a blanket ban on flavored and mint e-cigarettes, they should actively participate in policy discussions in mainstream countries like the UK and the US. Companies with the capacity should actively support and participate in e-cigarette surveys and research projects to gain more dialogue opportunities with mainstream research institutions and voice their own opinions.

The views expressed in this article apply only to the US market. To increase e-cigarette exports, the domestic market should strictly adhere to the regulatory provisions prohibiting flavored e-cigarettes set by the National Tobacco Monopoly Administration.

The authors of this article are:

Zheng Mingwei, Master of International Law from Shenzhen University, Director of the Comprehensive Business Committee and Equity Partner at Beijing Zhongyin (Shenzhen) Law Firm.

Lin Hongping, Master of Civil and Commercial Law from Huazhong University of Science and Technology, Master of Accounting from The Chinese University of Hong Kong;

Jiang Yubin, Master of Law from the University of Birmingham, UK;

Yang Aoyu, Bachelor of Law from the University of Hong Kong, Doctor of Law from the University of California, Irvine, and passed the California Bar Exam.

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