By: Kara Powell

“Vaping” has become an increasingly popular alternative to traditional cigarettes. Technically, vaping is an “electronic nicotine delivery system.”[1] Hookah, nicotine gels, and e-cigarettes are also included in this category.[2] While many adult smokers are turning to vaping while trying to quit smoking traditional cigarettes, many teenagers are also turning to vaping and e-cigarettes. E-cigarette use among high school students has increased drastically by 900% from 2011 to 2015.[3]

The 2009 Tobacco Control Act[4] gave the Food and Drug Administration (“FDA”) “authority to regulate the manufacture, distribution, and marketing of tobacco products.”[5] For example, under the Act, the FDA can restrict tobacco marketing and sales to youth, require smokeless tobacco product warning labels, and require disclosures of ingredients in tobacco products.[6]

The “Deeming Rule,”[7] amended the Tobacco Control Act by expanding the FDA’s authority from only being able to regulate traditional tobacco products, to being able to regulate all other types of tobacco products, including e-cigarettes and other vaping products.[8] The rule “deemed” that these vaping products constituted “tobacco products.”[9] Because of the “Deeming Rule,” e-cigarette products are now subject “to the same intense regulatory treatment as traditional cigarettes.”[10] This means that manufacturers and retailers must meet various requirements.  For example, manufacturers must pay fees, submit “tobacco health documents,” submit “quantities of harmful and potential harmful constituents,” and submit premarket applications.[11]

Before the Deeming Rule, there was no federal law to prohibit retailers from selling vaping products to minors under the age of eighteen.[12] One of the FDA’s main objectives with the Deeming Rule was to restrict youth’s access to tobacco products.[13] Recently, in September 2018, the FDA ordered five of the largest e-cigarette manufacturers to submit plans within sixty days on reducing teen use.[14] These five companies make up about ninety-seven percent of the e-cigarette market.[15] The FDA Commissioner, Scott Gottlieb, characterized the significant e-cigarette use among teens as a public health crisis.[16] In fact, after many convenience store retailers were caught illegally selling e-cigarettes to minors, the FDA is even considering limiting e-cigarette sales to vape shops.[17]

Only allowing vape shops to sell such products does not seem very effective, because if a teenager is using fake identification at a convenience store, nothing is stopping that individual from using the same form of identification at a vape shop. Hopefully a better and more realistic solution lies ahead once the five companies submit their plans to the FDA.

 

[1] Ashley Yi, Comment, E-cigarettes, the Controversial Buzz Across States that Puff for Stricter Regulation, 18 Tex. Tech. Admin. L. J. 149, 194 (2016).

[2] The Facts on the FDA’s New Tobacco Rule, U.S. Food & Drug Admin. (June 16, 2016), https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm506676.htm. I refer to “vaping” and “e-cigarettes” interchangeably in this blog post.

[3] U.S. Dep’t of health & human servs., Office of the Surgeon General, E-cigarette Use Among Youth and Young Adults (2016)

[4] 21 USC § 387 (2012)

[5] Family Smoking Prevention and Tobacco Control Act – an Overview, U.S. Food & Drug Admin., https://perma.cc/9Z46-A7VD (last updated Jan. 17, 2018)

[6] Id.

[7] The Deeming Rule, 81 Fed. Reg. 28975 (May 10, 2016) (codified at 21 C.F.R. pts. 1100, 1140, 1143).

[8] Lauren H. Greenberg, Note, The “Deeming Rule”: The FDA’s Destruction of the Vaping Industry, 83 Brooklyn L. Rev. 777, 777­–78.

[9] Jonathan H. Adler, Regulatory Obstacles to Harm Reduction: The Case of Smoking, 11 N.Y.U. J.L. & Liberty 713, 733.

[10] Id. at 778.

[11] Pipe, Cigar, and Vape Shops that Are Regulated as Both Retailers and Manufacturers, U.S. Food & Drug Admin., https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm506676.htm (last updated Aug. 13, 2018).

[12] The Facts on the FDA’s New Tobacco Rule, supra note 2.

[13] Id.

[14] Angelica LaVito, FDA Says it Had ‘Constructive’ Meetings with E-cigarette Manufacturers on Teen Epidemic, CNBC (Oct. 31, 2018), https://www.cnbc.com/2018/10/31/fda-has-met-with-juul-others-in-effort-to-curb-teen-e-cigarette-use.html.

[15] Id.

[16] Id.

[17] Angelica LaVito, FDA to Consider Limiting E-cigarette Sales to Vape Shops to Curb Youth Use, CNBC (Oct. 19, 2018), https://www.cnbc.com/2018/10/19/as-youth-e-cigarette-use-surges-fda-may-stop-convenience-store-sales.html.

Image Source: https://www.npr.org/sections/health-shots/2017/12/14/570767261/teens-pretty-sober-except-for-the-marijuana-and-vaping