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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 / NewscomBrendan McDermid / Reuters / NewscomIn 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.

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  • NoVaNick||

    This is great news for vape shops. Personally, I do not like most of the flavored vapes I have tried.

  • BYODB||

    Indeed it is, it's looking more and more attractive to move to Colorado and open a vape shop / dispensary.

  • Juice||

    Local news did a "sting" operation where they sent high schoolers around to various convenience stores to see if they could buy Juul pods. Almost all the vendors refused when they showed ID or didn't have ID. And of course 1 or 2 sold them some. This was all to prove how easy it is to get the vape. But, they could have done the exact same thing with cigarettes, which are of course, way worse for you than vape.

  • Nardz||

    At least cigs don't have the drawback of inverting one's penis

  • Longtobefree||

    Missing is the fact that vaping fluids do not have to contain nicotine.
    Once again, follow the gun control model and ban stuff because of how it looks, not what it actually is.
    Welcome to the revolution.

  • ||

    Missing is the fact that vaping fluids do not have to contain nicotine.

    That's how they get you!

  • NoVaNick||

    Just like a religion, progs like to roll things they don't approve of together into canon for no logical reason.

  • BYODB||

    The excuse 'for the children' is a weapon that is wielded by the left and the right, and that weapon is used to cut liberty off at the knee's.

  • ||

    That's why I've always admired Carlin's political slogan: "Fuck the children." It's a visceral way of telling politicians "the children are none of your business."

  • BYODB||

    Yeah, he was taken too young.

  • Fist of Etiquette||

    When will the FDA finally do something about candy cigarettes?

  • ||

    Once they figure out how to keep them lit.

  • NoVaNick||

    Don't worry-proggies will ban them too-unless they are shaped like a penis

  • Jalene||

    I miss the days when Jacob advocated for smokers' rights. And what's up with this morality BS anyway?

  • loveconstitution1789||

    Just remind government that its unconstitutional to ban any product or service unless they change their state or the US Constitution.

    The Constitutions do not give any government in the USA authority to ban products or services.

  • flyfishnevada||

    Since when has that stopped anyone from doing anything?

  • loveconstitution1789||

    Evidently never since people just let them do it.

  • Truthteller1||

    It's not a big deal. The vast majority of adult vapers go to vape shops anyway.

  • NoVaNick||

    Yeah, until a couple of years ago, I ordered mine online because there were no decent e-cigs available at the 7-11 or vape shops in my area.

  • spork||

    Stop liking what I don't like!

    This has nothing to do with the children. This is another strategic strike to keep the regulatory ball rolling on further widespread regulation. Once it has been conceded that the FDA can do this, they can point to this as justification for the next thing. I would far prefer that my youngsters suspiciously vape than smoke, just as a prefer that they secretly use weed (even in a fruity vape!) than drink or use opioids or amphetamines--but my parental preferences for the well-being of my own children is wholly unimportant. I love my children, but apparently not as much as the Tipper Gores and all the scolds in D. C.

    This WILL diminish the rate of reduction of smoking among all age groups, and for what? To take down Juul, the strawman of this entire debate.

  • CGN||

    With the exception of the EEOC, the FDA is the most worthless government agency ever. Its staff if ignorant as regards most things they regulate, and, much like Prohibition, their "banning" something like flavored vaping for kids is about as useful as stopping dogs from barking by prohibiting the same.

  • CGN||

    Don't forget: the government screws up almost anything it puts its hands to.

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  • jello.beyonce||

    Funny & interesting that Reason, a "Libertarian" leaning site, is calling for more stringent government controls, via better enforcement of restricting retailers sales to minors, in it's complaints against other government enforcements.

    This stupid e-cig problem highlights the problem of "Libertarianism".
    A policy of deregulation simply doesn't work, thus "Libertarians" simply call for different regulations.

    Left to their own will, those seeking more profit will seek it most any way they can find it.
    Retailers obviously aren't curbing sales to minors:
    • The number of high-school students who used e-cigarettes in the past 30 days has risen roughly 75 percent since last year to about three million.
    • The journal Nicotine and Tobacco Research, the report said that as teenagers who used e-cigarettes grew older, many began smoking traditional cigarettes.
    • A growing number of teenagers who have never smoked are also turning to e-cigarettes, believing that they are relatively harmless products.

    Again, "Herd Mentality" takes hold.
    Fads take-off, enticing more people to take part in those fads, beyond reason and logic.

    The human instinct of insecurity induces them to follow the herd, simple "to belong", rather than think independently.

    Read, "Instincts of the Herd in Peace and War" by Wilfred Trotter.

  • jello.beyonce||

    Back in the 1920's, before smoking was considered acceptable for women, when cigarette companies were looking to capture the other half of the demographic they had been missing (women), they hired Bernays to create a marketing campaign to entice women to smoke.
    Bernays started calling cigarettes "torches of freedom", and had groups of smoking women begin marching in parades, celebrating their "freedom", that would eventually become addiction to cigarettes.

    Read "Propaganda" by Edward Bernays.

    PR, marketing, advertising, and PROPAGANDA are far more pervasive than the mindless masses realize.
    Everyone likes to think that they think for themselves, yet most everyone just follow the wills of the great persuaders & manipulators.

    I'm guessing the Author of this "article" has never worked in Advertising, PR or Marketing.
    You've seemingly no idea the true intentions of those seeking greater profit.

    Read "The Invisible Gorilla". Just because you may think a particular way, doesn't mean everyone does.
    Just because you may not seek to market possibly dangerous products to teens, doesn't mean others don't.

    Your intuitions are misleading you to faulty conclusions.

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