Senators on Wednesday blasted top health and law enforcement officials for not doing more to combat the rise of illegal electronic cigarettes in the U.S., a multibillion-dollar business that has flourished amid haphazard enforcement.
Democrats and Republicans on the Senate Judiciary Committee expressed frustration and exasperation while questioning officials from the FDA and Justice Department (DOJ) about attempts to stay on top of the vaping industry, which has grown to include thousands of flavored, unauthorized e-cigarettes originating in China.
Those products, including brands like Elf Bar, have become the most popular choice among American teens who vape.
“I simply do not understand how FDA and DOJ have permitted thousands of products to remain on store shelves when their manufacturers have not received authorization, or, in some cases, even filed an application,” said Judiciary Chairman Dick Durbin.
The Illinois Democrat displayed a photo of brightly colored e-cigarettes, including ones in dragon fruit and watermelon bubblegum flavors, which he said a Senate staffer took at a vape shop near the FDA’s Maryland campus.
“These illegal products, clearly designed for children by their flavors, are being sold in the shadow of FDA’s building,” Durbin said. “How is that allowed to happen?”
FDA’s tobacco chief, Brian King, PhD, MPH, said the agency has been slowed by a backlog of applications submitted by vape companies seeking U.S. approval, which regulators are legally required to review.
“The sheer volume of this product landscape requires that we take the time to conduct scientifically and legally defensible reviews of the 27 million applications,” King said.
The FDA has OK’d a handful of e-cigarettes as alternatives for adult smokers. All other products on the market, including major sellers like Juul, are pending review or considered illegal by regulators.
Lawmakers also heard from a high school senior who said she became addicted to nicotine after trying a “blueberry ice” vape in ninth grade.
“I thought I was just enjoying the flavors but soon my 14-year-old brain craved the nicotine more and more,” said Josie Shapiro of Seattle. “I’ve tried to quit vaping over and over again, but it’s really, really hard.”
The FDA and DOJ have legally barred about a half-dozen vaping companies for selling products that can appeal to youngsters, but many more manufacturers continue launching new products, primarily vapes that can’t be refilled and are thrown in the trash.
Deputy Assistant Attorney General Arun Rao told senators that regulators at the Justice Department and other agencies have signaled that the vaping issue “is a priority across the executive branch.”
“I’m against signals,” Durbin said. “Do something!”
On Monday, the FDA and DOJ announced a new government task force, which will include the U.S. Postal Service and other agencies, to try and tackle the problem. That step was recommended in 2022 by an outside panel that reviewed longstanding complaints about the FDA’s tobacco program.
Sen. Thom Tillis (R-N.C.) called the timing of the announcement “a political stunt,” and criticized the absence of other federal agencies from the initiative, including Customs and Border Protection (CBP).
“If the timing of the task force formation wasn’t evidence of how unserious the FDA is about tackling the flood of illicit e-cigarettes, FDA’s exclusion of CBP from the task force makes it crystal clear,” said Tillis, who represents North Carolina, the nation’s leading tobacco producer. He urged officials to concentrate enforcement on brands from China, rather than large domestic manufacturers like Reynolds American.
The FDA can conduct investigations and recommend cases, but only the Justice Department can bring lawsuits. Federal prosecutors may decline to pursue cases for any number of reasons, including competing priorities, weaknesses in the case, or the potential repercussions of losing in court.
Using its own authorities, the FDA has sent hundreds of warning letters to vape shops and e-cigarette manufacturers in recent years. But the letters have done little to dissuade companies from selling new, illegal products.
Industry analysts estimate disposable vapes make up 30% to 40% of the roughly $7 billion-dollar vaping market. The two best-selling disposables — Breeze and Elf Bar — generated more than $500 million in sales last year, according to Nielsen retail sales data analyzed by Goldman Sachs.
Both brands have been sanctioned by FDA regulators but remain widely available, in some cases with new names, logos, and flavors. More than half of the 2.8 million U.S. teens and adolescents who vaped last year said they used Elf Bar.
King noted that products like Elf Bar cannot legally be sold in China because the government there has banned non-tobacco flavor e-cigarettes.
“You can’t sell them in China but you can sell them in the United States?” responded Sen. John Cornyn (R-Texas). The Texas Republican vowed to introduce legislation addressing what he called “an outrageous and unacceptable status quo.”
Overall, teen vaping has fallen 60% since its all-time high in 2019, following the COVID-19 pandemic and new age restrictions and flavor bans on e-cigarettes and other tobacco products.
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