The FDA's Plan to Ban Flavored E-Cigarettes From Most Stores Is Unfair and Dangerous

The new rule, aimed at preventing underage consumption, threatens public health by making vaping less appealing and less accessible to adult smokers.


Brendan McDermid / Reuters / Newscom

In an effort to curtail underage vaping, the Food and Drug Administration reportedly plans to ban the sale of most flavored e-cigarettes in stores that admit minors. This misguided, morally dubious policy will impede the shift from smoking to vaping, thereby endangering millions of Americans who might otherwise have made that potentially lifesaving switch.

The Washington Post reports that the new rules, which may be announced next week, will ban flavored e-cigarettes from "tens of thousands of convenience stores and gas stations across the country." The FDA will make an exception for menthol, the Post says, "because menthol is permitted in regular cigarettes as well, and the agency doesn't want to give traditional cigarettes an advantage over e-cigarettes in the retail setting."

Notwithstanding that concern, the FDA is applying a double standard that favors combustible cigarettes, which are far more dangerous than vaping devices like Juul and Blu. The agency is banning the vaping products that teenagers favor from most brick-and-mortar stores while letting them continue to sell the cigarettes that teenagers smoke. While smoking has reached record lows among teenagers (and adults), data from the 2017 National Youth Tobacco Survey indicate that something like 1.4 million high school and middle school students have smoked cigarettes in the last month. Yet those products will still be available in stores that admit minors.

It is reasonable to expect merchants to verify that e-cigarette buyers are at least 18 (the minimum purchase age under federal law), just as it is reasonable to expect them to do the same with cigarette buyers. The FDA reportedly plans to require that websites selling e-cigarettes use age verification technology (something that Juul, the dominant brand, already does), which is the online equivalent of carding the kid at the 7-Eleven (although the FDA says online merchants, contrary to what you might suppose, account for a small share of sales to minors).

To take the further step of eliminating purportedly kid-friendly products from the vast majority of stores is neither reasonable nor fair to the adult consumers who have a right to buy those products. It is akin to prohibiting supermarkets and convenience stores from selling Mike's Hard Lemonade or Jack Daniel's Country Cocktails because you're worried that some clerks will fail to ask people buying them for ID.

In both cases, we are talking about products that are indisputably popular among adults, even while they may also be popular among teenagers. The flavors that the FDA plans to restrict are the ones that smokers switching to vaping overwhelmingly favor, and they seem to play an important role in that process. The flavors the FDA will continue to allow in ordinary stores (as opposed to tobacco or vape shops that exclude minors) account for a small share of the adult market. In a recently completed online survey of more than 69,000 adult vapers, just 14 percent identified tobacco or menthol as flavors they used most often; the vast majority preferred supposedly juvenile fruit and dessert flavors.

Politicians, activists, and journalists nevertheless continue to talk as if offering adults the flavors they demonstrably want means you are deliberately targeting teenagers. "Tobacco companies have fought cutting flavors from e-cigarettes, saying they are not aimed at youths but at adults who need them as a way to transition from tobacco cigarettes," The New York Times reports. "But health advocates point to the packaging and youth appeal of a variety of flavors, including chicken and waffles, rocket Popsicle and unicorn milk as well as fruity tastes like mango."

I am sucking on a Juul with a mango-flavored pod right now. It is pleasantly fruity and not at all cloying. Likewise the "fruit" flavor, which leans toward cherries and berries. The mint is also pretty good. I do not care for "creme," which is reminiscent of caramel and too sweet for my taste, or "Virginia tobacco." It is patently ridiculous to suggest that flavors a 53-year-old might like are proof of a conspiracy to hook middle schoolers on nicotine.

I don't think FDA Commissioner Scott Gottlieb buys that argument. The FDA has noted "the role that flavors…may play in helping some smokers switch to potentially less harmful forms of nicotine delivery," and Gottlieb acknowledges the "unfortunate tradeoff" that restricting flavors entails. "In order to close the on-ramp to e-cigarettes for kids," he says, "we have to put in place some speed bumps for adults."

I question the moral logic of that value judgment, partly because there are other ways to reduce access by minors (such as more enforcement and better age verification) that do not create barriers for adult smokers who might be interested in switching to e-cigarettes. It is not fair that they should suffer for failures in which they played no part, especially when the cost to them, including smoking-related deaths that otherwise might not have happened, is much greater than the cost to teenagers who experiment with e-cigarettes.

"If the FDA bans or restricts e-cigarette sales in easily accessible places like gas stations and convenience stores, that is the sort of regulation that will hurt older and lower-income smokers more than anyone," notes Competitive Enterprise Institute consumer policy specialist Michelle Minton. "While traditional cigarettes remain conveniently accessible, if heavily taxed, the FDA's action erects new barriers to smokers obtaining harm-reducing alternatives. It simply means that fewer smokers will switch and, unfortunately, may mean an increase in smoking-related illness. This hasty, ill-considered action seems motivated more by politics than scientific evidence, sound policy, or a desire to actually save lives."

Update: In case you were wondering about the FDA's legal authority to mandate which stores may carry which flavors of e-cigarettes, the news that Juul, the market leader, is pre-emptively complying with the agency's anticipated demands suggests that question may not matter. The Wall Street Journal reports that Juul "has decided to stop selling most of its flavored nicotine liquids at bricks-and-mortar retail stores." When a government agency has the power to crush you by banning your product, you tend to listen to its suggestions about how best to discourage underage consumption.