The US strategy of banning imports of certain vape products has limited impact on manufacturers

Federal officials have seized more unauthorized shipments of e-cigarettes at U.S. ports, but according to government and industry data, thousands of new flavored e-cigarette products are still flowing into the United States.

These figures highlight the chaotic state of the U.S. e-cigarette market, which is worth US$7 billion, and raise questions about how the U.S. government can stop the influx of fruit-flavored disposable e-cigarettes used by one in ten American teenagers.

According to industry data from analytics firm Circana, more than 11,500 e-cigarette products are being sold in U.S. stores, up 27% from 9,000 products in June.

“FDA cracks down on one product, then manufacturers work around it, and kids work around it too,” said Stanford psychologist Bonnie Halpern-Felsher. “It’s just too easy to tweak a product slightly and relaunch it.”

Nearly all of the new products are disposable e-cigarettes, according to sales data collected from gas stations, convenience stores, and other retailers. These products generated US$3.2 billion in sales in the first 11 months of this year.

Despite a record number of seizures, e-cigarette sales continue to rise.

FDA database records show that officials “refused” imports of 148 containers or pallets of “tobacco” cargo last month. Normally, refused imports are destroyed.

As of the end of November, U.S. officials had refused 374 shipments of such goods this year, more than double the 118 shipments refused in 2022.

This year’s shipments included US$400,000 worth of Esco Bars e-cigarettes, a brand that was added to the import ban list in May. Data released by the agency is generally preliminary, since it takes time to determine a refusal.

But recent history shows that companies can easily get around import bans.

In July 2022, the FDA banned dozens of e-cigarette products from Fume, including flavors such as Pineapple Ice and Blue Razz.

Although Fume’s sales declined after the ban, the company launched a large number of new products, reaching US$42 million in U.S. sales in the third quarter of 2023. The data shows that about 98% of sales came from products on the FDA’s “red list” that had not been seized.

The industry’s shipping strategies are also undermining the effectiveness of import restrictions.

In July 2022, FDA and customs officials intercepted US$18 million worth of illegal e-cigarettes, including the leading brand Elf Bar. But the goods were mislabeled as shoes, toys, and other items—instead of e-cigarettes—forcing officials to open and inspect two dozen containers one by one to verify their contents.

Circana, formerly known as IRI, restricts access to its data, which it sells to companies and researchers. Unauthorized individuals provided the AP with access on condition of anonymity.

The FDA has limited power to penalize foreign companies. Instead, regulators have sent hundreds of warning letters to U.S. stores selling their products, but those letters are not legally binding.

Even as the FDA tries to work with customs officials, it has struggled to complete its review of applications submitted over the years by manufacturers seeking to sell their products to adults.

The few tobacco-flavored e-cigarettes currently authorized by the FDA are very unpopular. According to Circana, those products generated just US$174 million in sales this year, accounting for only 2.4% of the overall e-cigarette market.

Frustration over the pace of FDA reviews led public health groups to successfully sue the agency to speed up the process. The agency aimed to complete all major pending applications this year, but recently said the process will extend into next year.

These delays have raised questions about the viability of the current regulatory framework for e-cigarettes.

“FDA is trying to use an old model while the entire landscape is changing,” said health policy adviser Scott Ballin, who previously worked at the American Heart Association. “They have a long list of products to review one by one, and now they’re in a huge bind.”

An alternative approach would be to make decisions by category for entire classes of e-cigarettes, rather than product by product.

The idea was originally proposed by small e-cigarette manufacturers that lacked the funding for the large-scale studies typically required for FDA applications. Public health advocates concerned about youth smoking have since embraced the concept.

Halpern-Felsher of Stanford and others are urging the FDA to ban all flavored disposable e-cigarettes, which make up the majority of the products used by 2 million underage teens.

“If we continue down this road,” she said, “we are going to create a new and continuing generation of young people addicted to nicotine.”