The Food and Drug Administration just announced a series of restrictions aimed at combating a growing public health menace — flavored e-cigarettes and tobacco products that have lured young people into vaping and smoking.
The effort to cut off access to flavored e-cigarettes stopped short of a ban that the F.D.A. had threatened in recent months as it sought to persuade e-cigarette makers to cease marketing strategies that might appeal to minors. The agency said it would allow stores to continue selling such flavored products, but only from closed off-areas that would be inaccessible to teenagers.
“Almost all adult smokers started smoking when they were kids,” Dr. Scott Gottlieb, the agency’s commissioner, said in a statement. “Today, we significantly advance our efforts to combat youth access and appeal with proposals that firmly and directly address the core of the epidemic: flavors.” Some 3.6 million people under 18 have reported using e-cigarettes.
Still, the plan to sequester flavored e-cigarettes in stores, rather than ban selling them, was surprising to many people since many had heard that an imminent ban leaked out widely from the agency over the past week and Federal law already prohibits the sale of cigarettes and e-cigarettes to anyone under 18. The decision may be a legal one. Lawyers said the agency did not have the legal authority to impose such a ban without going through a long, complicated process that would have inevitably ended up in court.
It’s tricky trying to navigate the murky waters between public health concerns about nicotine addiction among teenagers and a reluctance to heavily restrict e-cigarettes that can help adult smokers quit. Dr. Gottlieb is hoping that vape manufacturers will police themselves. “We hope that in the next 90 days, manufacturers choose to remove flavored ENDS products where kids can access them and from online sites that do not have sufficiently robust age-verification procedures,” Gottlieb said in a statement. In response, many e-cigarette makers responded to the rumored ban threat by announcing their own plans to curb teen use of their products, including suspending store sales of its flavored pods, dropping its social media promotions, and toughening online age-verification requirements. Although these companies stopped short of saying they’d completely end sales at convenience stores, gas stations and other outlets.
“Does this mean a simple curtain with a sign like we used to see at the entrance to the pornography section of video stores?” asked Matt Myers, president of Campaign for Tobacco-Free Kids. Dr. Gottlieb insisted that the new restrictions were pretty much the same as a ban. “This policy will make sure the fruity flavors are no longer accessible to kids in retail sites, plain and simple,” he said. “That’s where they’re getting access to the e-cigs and we intend to end those sales.” For their part, the F.D.A. cryptically stated it would provide more detail on how to restrict access “at a later date.”
It appears the F.D.A. has made no one happy with these new measures. On one side, Dr. Gottlieb has stated putting the vaping products under counters doesn’t go far enough. “What we are envisioning is a separate room or a walled-off area,” he said. “It needs to be a complete separate structure. A curtain won’t cut it.” And in this corner, now industry lawyers have challenged the commissioner’s authority to impose even these requirements. “The Tobacco Control Act is clear that the F.D.A. can’t discriminate against one type of retail outlet and that’s what they’re trying to do here,” said Doug Kantor, counsel to the National Association of Convenience Stores. “There is a very good chance this will end up in litigation and lawyers are looking at that right now.”
Meanwhile the health and welfare of those millions of teens hooked on vapes hangs in the balance.
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