FDA Ban on Flavored E-Cigarettes Is Expected to Exempt Open-System E-Liquids

In response to intense opposition from vapers and the industry, the Trump administration has recalibrated its plan.


It looks like the pending federal ban on flavored e-cigarettes will exempt e-liquids used in refillable vaporizers and apply only to cartridges, the type of product that is most popular with teenagers. The New York Times reports that the new restrictions, which the Food and Drug Administration (FDA) is expected to announce soon, will allow cartridges such as Juul-compatible pods only in tobacco and menthol flavors but will not cover the fluids that vapers use in open systems. According to the Times, menthol will be exempted because it is a popular cigarette flavor, accounting for 35 percent of the market, but is not favored by underage vapers.

That compromise represents a significant recalibration of a proposed policy that provoked intense opposition from adult consumers and the vaping industry, including thousands of small businesses across the country. The response led Donald Trump's political advisers to warn that a flavor ban could alienate voters who were otherwise inclined to support the president, potentially threatening his re-election.

The FDA originally planned to ban all e-liquid flavors but tobacco. The main justification for that policy was the recent surge in vaping by minors, who overwhelmingly prefer mint, fruit, candy, and dessert flavors. But that is also true of adults who have switched from smoking to vaping, many of whom say flavor variety was important in that transition. The targeted flavors account for almost all sales at vape shops that cater to adults, and it was expected that a blanket ban would drive some vapers back to smoking, a far more dangerous habit, while deterring current smokers from quitting.

On New Year's Eve, Trump said the flavor restrictions will be announced "very shortly," although he suggested they will be temporary. "We'll be taking it off—the flavors—for a period of time, certain flavors," he told reporters at his Mar-a-Lago resort in Palm Beach, Florida. "We're going to protect our families, we're going to protect the children, and we're going to protect the industry. Hopefully, if everything's safe, they're going to be going very quickly back onto the market."

Trump alluded to the recent outbreak of vaping-related lung illnesses, which are strongly associated with cannabis extracts containing vitamin E acetate, an additive that began showing up in black-market THC cartridges in 2019. "People have died from this, they've died from vaping," he said. "We think we understand why. But we're doing a very exhaustive examination, and hopefully everything will be back on the market very, very shortly."

Trump noted the harm-reducing potential of legal e-cigarettes, which do not contain vitamin E acetate and deliver nicotine without tobacco or combustion products. "Vaping can be good," he said. "[With] e-cigarettes, you stop smoking. If you can stop smoking, that's a big advantage."

Trump's attitude toward e-cigarettes seems to have evolved since he first announced a flavor ban in September, saying "we are going to have to do something" about the increase in underage consumption. "While I like the Vaping alternative to Cigarettes, we need to make sure this alternative is SAFE for ALL!" he said on Twitter two days later. "Let's get counterfeits off the market, and keep young children from Vaping!"

By November, Trump was beginning to view the FDA ban as an example of potentially damaging overregulation. "Will be meeting with representatives of the Vaping industry, together with medical professionals and individual state representatives, to come up with an acceptable solution to the Vaping and E-cigarette dilemma," he tweeted on November 11. "Children's health & safety, together with jobs, will be a focus!"

At that meeting, held on November 22, Trump was receptive to the argument that excessive legal restrictions could drive nicotine vapers toward potentially hazardous black-market alternatives. "If you don't give it to them," he said, "it's going to come here illegally." An unnamed "senior administration official" told The Washington Post the president initially acted based on one-sided information about vaping. "He didn't know much about the issue and was just doing it for Melania and Ivanka," the official said, referring to the president's wife and daughter.

Whatever happens with the flavor restrictions, the vaping industry faces another imminent threat. Under a 2016 rule, all e-liquid and device manufacturers that want to keep their products on the market must submit costly, time-intensive applications to the FDA by May 12. That requirement is expected to eliminate the vast majority of current products, including  e-liquids produced by small manufacturers and vape shops.

It remains to be seen whether Trump's new concern about the health of the vaping industry will translate into less onerous requirements for FDA approval. "Our next focus will be on ensuring that the Trump administration recognizes the need to reform the FDA's regulatory system for these products," Gregory Conley, president of the American Vaping Association, told me in November, when it seemed that Trump was reconsidering the flavor ban. "If President Trump wants to win in 2020, mere inaction on this issue is not enough."

NEXT: Brickbats: January 2020

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  1. “The response led Donald Trump’s political advisers to warn that a flavor ban could alienate voters who were otherwise inclined to support the president, potentially threatening his re-election.”

    Is there anything worse, from a progressives standpoint, than a president who listens to voters and changes policy accordingly?

    The whole point of a having a progressive president is so that he, she, or xe will inflict unpopular policies on the unwilling–for the greater good of us all.

    This is one of the key differences between elitists and the rest of us. Elitists see public opinion as an obstacle and nothing more. Real libertarians see public opinion as people exercising their rights and making choices. Donald Trump isn’t quite there, but he’s head and shoulders above the progressive competition.

    1. Don’t you know we are supposed to follow the commands of our betters?

    2. Trump is trying to influence the 2020 election! I hope Schiff is on this because we’re gonna need to have a lot of secret hearings and impeach the motherfucker. Again.
      Seriously In the current prohibitionist environment this probably the best vapers can hope for. So good on Trump.

    3. Orange Man still very very bad no matter how much you try to convince yourself there is something descent under the surface of that entitled self centered moron!

      1. I ment to say decent.

        1. But did you mean to say meant?

          1. Did you mean to be mean?

      2. Yes, because it’s so easy to get elected president that even morons can do it? Talk about being a moron…

    4. Elitists hate vaping because it looks too much like smoking (which is now for the white trash and black folk), and now their kids are into it, so it has to go -a lot like prior hysterias over pot and rock music. Yet, pot is OK now because it is natural.

      1. What about vaping THC or CBD? Or just flavors?

    5. Uh, no, Ken. Libertarians don’t see public opinion as good or bad. Public opinion can be good on one issue and bad on another issue. And in this case, Trump is wrong in banning a product that some people want to buy for their own enjoyment. End of story, from a libertarian perspective.

      1. Libertarians don’t care about public opinion. Trump is wrong because a ban violates the NAP.

        1. I’m not a big fan of the NAP, but if violating the NAP is wrong, it’s because violating the NAP ignores the opinion of the target of your aggression. Using the coercive power of government to ban the manufacture, distribution, and consumption of alcohol, ignores the opinions of alcohol manufacturers, alcohol distributors, and consumers of alcohol.

          One of the problems with the way people cite the NAP is that it often draws them into false dichotomies. If banning all vaping products is bad because it violates the NAP and Trump banning only some vaping products is also bad because it violates the NAP, that doesn’t mean that banning all vaping products is just as bad as only banning some. In reality, banning less is better than banning more.

      2. Markets are people making choices. They’re better than elections at gauging public opinion for a number of reasons, but they’re a good thing because they’re good a gauging public opinion.

        Anyone who claims to know the American people’s opinion on vaping, guns, or the environment better than American buyers of vaping products, guns, or electric cars and solar panels is wrong and elitist.

        Markets are better than elections and representative democracy at gauging public opinion and respecting public opinion isn’t just a good thing–it’s absolutely necessary for a free society. This is in direct contrast to elitists, who see public opinion on vaping, gun, and the environment as an obstacle that should be properly ignored.

        “Uh, no, Ken. Libertarians don’t see public opinion as good or bad. Public opinion can be good on one issue and bad on another issue.”

        Public opinion should be respected within its proper purview, regardless of whether you think a particular opinion is good or bad, and inflicting policy on the unwilling the greater good as progressives see it is what being a progressive is all about. Donald Trump is showing himself not to be a progressive with this move.

        When progressives like Bloomberg use the coercive power of government to inflict a large sugary soft-drink ban on the unwilling, he’s not just showing indifference for public opinion. He’s showing contempt.

        1. Protests, petitions, and lobbying reflect people’s words, market decisions reflect people’s actions. We all know which of those speak louder

  2. 21 should be the legal age to be able to die for your country!

    1. Prior to conception should be the legal age to be able to die for the collective. The Democrats should campaign on a platform of enabling ‘Top Men’ to run a Department of Population Control – to ensure only the right types of people reproduce and only in the right amounts.

  3. It looks like the pending federal ban on flavored e-cigarettes will exempt e-liquids used in refillable vaporizers and apply only to cartridges,

    So, the version that is most susceptable to tampering and adulturation with illegal products – they’ll keep that around – but the one that isn’t – we’ll ban that. For the children.

    And then when the children start using the other type of system – then they’ll come back and ban that.

    All because these idiots basically are going ‘I’m a boomer and don’t use these products so its really only people I don’t like (even though I’ve never met any of them) that will be hurt by this so I’m ok with it’.

    1. Ha Ha . Boomer envy.

    2. You obviously didn’t read the article if you think it’s for the children. It’s just the one children – Ivanka. Now I can see doing shit you don’t really want to do because you’re being nagged by the wife, but I’ll be damned if my children are going to be nagging me into it.

    3. Cartridges aren’t sealed you can put anything in them.

      1. They are still less susceptible to tampering because when you buy a box of Juul pods they come in a tamper-evident package. Since teens will now buy/sell/trade refilled Juul pods then, as you say, you can put anything in them

  4. Trump is taking baby-step to toddler-range steps to allow more individual freedoms. Yay for Trump!

    WHEN is the Trumpster gonna put the BIG boot down on the FDA, which deserves it way, way bad? WHEN am I gonna be allowed to blow on a cheap plastic flute, w/o permission from ANYONE, outside of “God”, AKA/and my own conscience?

    To find precise details on what NOT to do, to avoid the flute police, please see http://www.churchofsqrls.com/DONT_DO_THIS/ … This has been a pubic service, courtesy of the Church of SQRLS!

    1. I’ve got a new year’s resolution for you, Sqrlsy, but you’re not gonna like it.

      1. I have resolved NOT to blow upon ANY cheap plastic flutes that are NOT prescribed for MEEE!!!

        I got me a prescription back in about 2012… The damned thing set me back $55 or so, and did NOT do me ANY good!

        Fucking bastards at the FDA should eat the shit (and pus and puke and jism) of EVERY organism in the freakin’ GALAXY, as far as I am concerned!

        1. Way to not shit on the thread, Hihn!

  5. The FDA originally planned to ban all e-liquid flavors but tobacco. The main justification for that policy was the recent surge in vaping by minors, who overwhelmingly prefer mint, fruit, candy, and dessert flavors.

    Oh, FFS! Why doesn’t the FDA solve the obesity problem by banning mint, fruit, candy, and dessert?

    1. I’m sure there’s a ton of people who’d love to ban sugar just because any enjoyment of anything, anywhere, anytime means people aren’t sufficiently suffering for their sins, but most of our sugar comes in the form of corn syrup, so Big Sugar is really Big Corn and nobody is suicidal enough to publicly challenge Big Corn.

      1. We are ALL corny now! Yet MORE reason to NOT challenge Big Corn!

        (NOTE that I’d rather be horny than corny).

      2. nobody is suicidal enough to publicly challenge Big Corn.

        Not even in the name of Bob Dole?

        1. “What is this, some kind of tube?”

      3. Big Sugar was the name of the fat prostitute from whom Jerry Skids received his first blowjob. You don’t want to know who Big Corn was.

    2. Alternatively stop tiptoeing around it and just ban being fat. It’s just as constitutional and just as likely to work.

  6. I think this is a step in the right direction. I personally buy the [best CBD oil] (https://penguincbd.com/products/cbd-oil) to help with my stress. Numerous government funded studies have shown CBD oil is a healthy and safe solution for many ailments.

  7. Making your own juice is dead simple. Just make sure everything is clean.

    1. Don’t tell me what to do!!

  8. If we don’t understand the main reason, see this

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