Free Minds & Free Markets

Proposed FDA Policy Will Make It Harder for Vapers to Get the Flavors They Prefer

The upshot could be more smoking-related disease and death.

FDAFDAMoving forward with its plan to restrict sales of e-cigarettes in the name of preventing underage vaping, the Food and Drug Administration today unveiled a "draft compliance policy" that effectively bans all flavors except tobacco, mint, and menthol but prioritizes enforcement against products "offered for sale in ways that pose a greater risk for minors." What that means is not completely clear, although it is bound to create headaches for manufacturers and retailers while making it harder for both former smokers and people interested in quitting to obtain the vaping products they prefer.

The FDA plans to "end current compliance policy" for e-cigarettes, except the three exempted flavors. That policy gave manufacturers until August 2022 to get FDA approval for their products, four years later than the original deadline. In the interim, they were allowed to continue selling products that were on the market as of August 8, 2016. The FDA intends to move the deadline up by a year for the disfavored flavors (i.e., nearly all of them) and end its policy of preapproval forbearance as it applies to those products. But the agency suggests that it won't take immediate action against them unless they are sold in a way that implicates its enforcement priorities.

The FDA lists four of those priorities: 1) "products sold in locations that minors are able to enter at any time," 2) "products sold through retail establishments and online retail locations that have sold to minors after issuance of the guidance," 3) "products sold online with no limit on the quantity that a customer may purchase within a given period of time," and 4) "products sold online without independent, third-party age- and identity-verification services that compare customer information against third-party data sources, such as public records."

Although the list is not necessarily exhaustive, it seems reasonable to surmise that flavored e-cigarettes, pods, and e-liquids won't be subject to immediate enforcement action if they are sold by stores that do not admit minors or by online vendors with age verification and quantity limits. Theoretically, a convenience store could get away with selling such products if it restricted them to a separate section where minors are not allowed, but the cost of doing that surely will be prohibitive in most cases. (That option seems to be aimed mainly at evading a provision of the Family Smoking Prevention and Tobacco Control Act that says the FDA may not "prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets.") The upshot is that adults who like the disfavored flavors will have to get them from vape shops, tobacconists, or websites with FDA-approved policies, as opposed to the thousands of other stores where they were heretofore available.

"We expect that some flavored e-cigarette products will no longer be sold at all," says FDA Commissioner Scott Gottlieb. "We expect that other flavored e-cigarette products that continue to be sold will be sold only in a manner that prevents youth access, while premarket authorization for these products is sought from the FDA by 2021." Retailers who carried flavored e-cigarettes would be well-advised not to take Gottlieb at his word here, since they will be subject to enforcement action if they let customers younger than 18 enter their stores, even if they are scrupulous about checking IDs and never sell e-cigarettes to minors.

Gottlieb, who recognizes that e-cigarettes offer a "tremendous public health opportunity" as a harm-reducing alternative to the combustible kind, justifies the FDA's flavor discrimination by observing that the restricted varieties are especially popular with teenagers. Yet they are also undeniably popular with adults. According to survey data cited by the FDA in its draft compliance policy, 63 percent of adult vapers prefer flavors other than mint or menthol. "E-cigarettes are appealing to both youth and adults because of the variety of flavors that allow for customization," the authors of that study observed. "Findings indicate that the wide variety of flavors available and the freedom to 'mix-and-match' flavors may maintain use of e-cigarettes among youth and adults."

Will every vaper who likes a variety of flavors backslide once they are harder to get than the cigarettes he used to smoke? Will every smoker who tries vaping be deterred by the lack of flavor variety in the vast majority of stores? No, but there are bound to be some people in both categories, and they will face much greater health hazards than they otherwise would. The FDA is effectively encouraging smoking by trying to curb adolescent vaping with measures that go far beyond enforcing the minimum purchase age.

"This could have been worse," says Liz Mair of Vapers United. "But we do not consider the debate surrounding vapor regulation to be anywhere near settled, and we would urge FDA to provide further clarity as soon as possible, while continuing to bear in mind that the priority here should be enabling existing smokers to try vaping as a method [of] quitting and/or reducing harm...rather than restricting the marketplace in a way that could inadvertently keep smoking rates where they are now or even lead to them rising again."

The FDA will be accepting comments on its proposed policy for the next 30 days.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • NoVaNick||

    This is good news for vape shops but otherwise a completely retarded policy. Convenience stores where I live sell beer, wine, and of course cigarettes. Doubt the FDA will stop there either.

  • Crusty Juggler - Lawbertarian||

    What about the childrens?!?!?

  • Deconstructed Potato||

    That is definitely not a currently available flavor. I hope.

  • Rich||

    effectively bans all flavors except tobacco, mint, and menthol

    Well, at least the FDA is not racist.

  • Ordinary Person||

    Vapers are terrorists cause they're druggies. God bless Trump. 6 more years!!!

  • IceTrey||

    You can get juice with no nicotine.

  • buybuydandavis||

    "that effectively bans all flavors except tobacco, mint, and menthol "

    Mint and methanol contain menthol, which is a mild analgesic and activates your cold receptors chemically. They're put in smoking products to mask damage and irritation. If I had to pick a harmful flavor for smoking products, menthol would be it.

    If it just tasted/smelled like strawberries, your body's natural defenses against damage wouldn't be subverted.

    Not content to rest on having turned half the country diabetic, the FDA diligently continues its efforts to harm the health of the American people.

  • Diane Reynolds (Paul.)||

    First they came for the Vapers, and I said nothing...

  • LiborCon||

    While I don't think the government should meddle with how businesses sell legal products, vaping is just so douchey I can't make myself give a shit.

  • IceTrey||

    You don't give a shit about the erosion of liberty?

  • LiborCon||

    Ok, you're right.

    The FDA is making it harder for douchebags to suck on their candy flavored phalluses. Those fucking Nazis!

  • Kevin Smith||

    So really you just think the government shouldn't meddle with how businesses sell legal products that you buy

  • LiborCon||

    So really you just think that I won't recognize a strawman?

  • Echospinner||

    Mom, ever get that not so fresh feeling?

  • IceTrey||

    FDA is responsible for

    Protecting the public health by assuring that foods (except for meat from livestock, poultry and some egg products which are regulated by the U.S. Department of Agriculture) are safe, wholesome, sanitary and properly labeled; ensuring that human and veterinary drugs, and vaccines and other biological products and medical devices intended for human use are safe and effective

    Protecting the public from electronic product radiation

    Assuring cosmetics and dietary supplements are safe and properly labeled

    Regulating tobacco products

    Advancing the public health by helping to speed product innovations

    I don't see anything about underage vaping in there.

  • Rich||

    Assuring dietary supplements are properly labeled

    To wit, with "These statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure or prevent any disease."

  • perlchpr||

    Now that's a woodchipperable face if I ever saw one.

  • vek||

    Grrr. If they go through with this shit, I'm going to be PISSED. I quit smoking for vaping a few years ago, and it has been a vast improvement for my health and my wallet. I mostly stick to a couple flavors I ended up liking, namely caramel tobacco and menthol... But if they shit can a flavor like caramel being able to be in there, I will basically not be able to vape anymore... Because nothing else is acceptable for ALL THE TIME.

    I will either have to finally quit altogether, or I'll start smoking again. I'll probably try to quit completely, but I do love me some real cigs... So who knows.

    Maybe I'll be able to illegally order stuff online from overseas, that'll teach them!

  • Kevin Smith||

    My fiancee is in the same boat, she quit smoking for vaping, but the tobacco, mint, and menthol flavors trigger her asthma, but some of the fruit flavors do not

    At least they will still be available in more controlled vape shops and online (for now) but this is actually the 3rd time the FDA has banned her "brand" lol

  • mpercy||

    What did she do for her asthma when she smoked tobacco?

  • SIV||

    Inhaling burning tobacco smoke > chinee recycled butt vape shit

  • DenverJ||

    Jesus fucking christ. Can the fucking federal government just leave us alone, already? I'm vaping to quit smoking, again, and the flavor stuff is what makes it tolerable.
    Where does the constitution empower these asshats to meddle with this market in any way?
    Also, hitler
    Also also first


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