Trump Administration’s E-Liquid Flavor Ban Is the Wrong Way to Reduce Underage Vaping

During a press conference on September 11, 2019, American President Donald Trump announced his intention to crack down on the vaping industry by banning all flavored e-liquids – except tobacco-flavored e-liquids – in the United States.

On the surface, an e-liquid flavor ban sounds like the right move to millions of concerned parents across the country. It’s also an easy win for politicians. Every lawmaker – whether Democrat or Republican – represents citizens who are rightfully concerned about underage vaping. Sometimes, it feels as though America has never been more ideologically divided than it is right now. Vaping is one of the few topics on which virtually all politicians agree. So, they’re “getting tough on vaping.” It’s an easy feel-good story during an age in which feel-good stories in American politics seem almost impossible to come by.

However, the proposed e-liquid flavor ban is the wrong way to reduce underage vaping. It’s another mistake in a string of regulatory blunders. It’s also the wrong way to reduce the 480,000 preventable deaths of smokers that occur in the U.S. each year.

So, why is the U.S. government banning e-liquid flavors, and what could have been done differently? Those are the things you’re going to learn reading this article.

Why Is the Trump Administration Banning E-Liquid Flavors?

The proposed flavor ban followed news of several recent “vaping deaths.” In addition, preliminary data from the 2019 National Youth Tobacco Survey – which the government has not yet released – suggests that e-cigarette use among high school students has risen yet again. According to the surveys from the last three years:

• 11.7 percent of high school students vaped regularly in 2017.
• 20.8 percent of high school students vaped regularly in 2018.
• 27.5 percent of high school students now vape in 2019 (preliminary statistic).

That’s more than 5 million underage vapers in the United States. In addition, many of the children who reported e-cigarette use in previous surveys are now adult vapers – but they’re adult vapers who have never used tobacco and did not use vaping as a means of quitting smoking.

The great promise of vaping – and the reason why it has so much potential to benefit public health – is that it can reduce harm among those who already use nicotine and either can’t or won’t quit. No one ever intended for non-tobacco users to start vaping. When public health officials say that vaping has created a new generation of nicotine addicts, they aren’t lying or exaggerating.

The U.S. government has given the vaping industry and its network of retailers years to get themselves under control, tone down their marketing, tone down their packaging and control who has access to the products at the retail level. The government ordered the industry to find a way to slow the increase in underage vaping. That hasn’t happened, so the Trump administration intends to take immediate action by removing almost all flavored e-liquids from the market.

What’s the Timeline for the E-Liquid Flavor Ban?

During President Trump’s press conference, Secretary of Health and Human Services Alex Azar said that it would take “several weeks” to put the proposed guidelines into writing. The e-liquid flavor ban would commence 30 days after the guidelines are released. At that point, it will be illegal to buy or sell anything other than unflavored and tobacco-flavored e-liquids. You will still be able to buy unflavored e-liquids and add your own flavors to them. In addition, if a manufacturer puts a flavored e-liquid through the Premarket Tobacco Application (PMTA) process successfully, that e-liquid will be legal to buy and sell once again.

Is There a Chance That the Flavor Ban Won’t Happen?

That’s unlikely. During President Trump’s press conference, his statements about the recent vaping lung illnesses made it clear that he doesn’t understand the differences between illicit THC vaping and legal nicotine e-liquid vaping. Underage vaping, however, is a real problem that isn’t going away on its own – and the government hasn’t produced another regulatory solution to stem that tide.

After the press conference, Trump released a tweet in which he said that he liked “the vaping alternative to cigarettes.” The tweet suggests that Trump learned more about nicotine vaping after the press conference, but it’s unlikely that it indicates a policy change.

There is a small chance that mint and menthol e-liquids will be removed from the ban before the FDA’s new guidelines are finalized. As long as menthol cigarettes are available, banning menthol e-liquid makes little sense and will encounter extremely strong opposition.

What Could the U.S. Government Have Done Differently to Reduce Underage Vaping?

The FDA has deemed vaping products to be tobacco products under the provisions of the Family Smoking Prevention and Tobacco Control Act of 2009. The Family Smoking Prevention Act says that any tobacco product released after February 15, 2007 must go through the PMTA process before it will be legal to sell. Since every vaping product on the American market was released after that date, every vaping product is a “new tobacco product” being sold without authorization. The FDA therefore has ultimate power to remove any vaping product from the market pending PMTA approval. So, is it really necessary to ban e-liquid flavors? In fact, the Family Smoking Prevention Act allows the FDA to do almost anything. Here’s what they could have done.

Emulate the E.U. Tobacco Products Directive

It’s interesting to note that in the next largest vaping market – the European Union and the United Kingdom – underage vaping has never taken hold the way it has here. The European regulatory approach to vaping may have something to do with that. Early on, the E.U. put common-sense limits on what the vaping industry could bring to the market.

One of those limits was a maximum allowable e-liquid nicotine strength that limited the addictive potential of vaping products. JUUL – the top e-cigarette among underage vapers in America – had a nicotine strength that was more than double the legal limit in Europe. As a result, JUUL didn’t appear in Europe until lower-strength pods were available – and JUUL didn’t begin manufacturing lower-strength pods until the youth vaping epidemic had already fully taken hold in the United States.

Imagine an alternative history in which the U.S. government used the E.U. Tobacco Products Directive as a model for its own vaping regulations. In that scenario, a substantially more addictive e-cigarette like the JUUL couldn’t have appeared and taken over the vaping market.

It isn’t too late for the U.S. to put a limitation like that in place. E-cigarettes can be powerful tools for tobacco harm reduction without having the same addictive potential as tobacco.

Ban All Pod Vaping Systems

Let’s face it. When e-liquid manufacturers were designing packages, product names and flavor descriptions that mimicked popular candies, juice boxes and cereals, everybody knew that was a bad idea and that the government was going to need to crack down on it. That being said, underage vapers for the most part are not building RDA coils and dripping 3 mg e-liquids; they’re using the JUUL. Remember that the FDA has the power to remove absolutely any vaping product from the market because every vaping product is a “new tobacco product” being sold without authorization. The FDA could have easily reversed the underage vaping epidemic by banning the JUUL or all pod vaping systems and nicotine salt e-liquids.

Sorry, JUUL users, but you’re the reason why we can’t have nice things.

Of course, since JUUL is now under Altria’s umbrella, the FDA would have to ruffle Big Tobacco’s feathers to ban pod systems – which is a possible reason why it hasn’t happened. Nevertheless, it would have been a relatively simple solution for reducing or eliminating underage vaping without setting tobacco harm reduction back by more than a decade.