With e-cigarette use now epidemic among teens, and cigarettes still the leading cause of preventable death in the United States, the Trump Food and Drug Administration announced on Thursday a series of moves meant to drive young people away from tobacco products.
The agency said it’s working to ban menthol cigarettes and flavored cigars from the market, as well as restrict the sales of flavored e-cigarettes in stores — though it wouldn’t outright ban vape flavors in brick-and-mortar retailers, a move that was widely anticipated after leaked reports over the last week.
The menthol ban will require new regulation — and will take years to go into effect — but it would have a greater health impact: Researchers have long known menthol cigarettes are more attractive to youth and harder to quit than regular cigarettes. They’ve also been heavily marketed at — and are especially popular among — black smokers.
“I believe these menthol-flavored products represent one of the most common and pernicious routes by which kids initiate on combustible cigarettes,” FDA Commissioner Scott Gottlieb said in a statement Thursday. “Moreover, I believe that menthol products disproportionately and adversely affect underserved communities.”
The new e-cigarette restrictions FDA is pursuing will allow retailers to continue selling flavored vape products, but in age-restricted, zoned-off areas. For products sold online, the agency also wants to heighten age verification requirements.
These changes fall short of the ban on flavored cartridge-based e-cigarettes in thousands of convenience stores and gas stations across the US that many anticipated. According to the New York Times, the agency backed off pursuing a ban because it lacked the legal authority and would have wound up in “protracted court battles.”
These changes are a response new data showing a 78 percent increase in the use of vaping devices among high schools since 2017, as well as evidence that teens are quickly adopting products like Juul, a vape device that burns pods with flavors like Creme Brûlée.
“These increases must stop,” Gottlieb said. “And the bottom line is this: I will not allow a generation of children to become addicted to nicotine through e-cigarettes.”
By trying to curtail access to vape, cigar, and cigarette products that appeal to youth, the FDA is aiming to drive down vaping and smoking rates in minors without adding any barriers for established smokers who want to move to vaping. But with teen vaping already widespread in America, that might be easier said than done.
Tobacco remains a major killer in the US. Yet, when the FDA banned flavor claims on regular cigarettes, Congress exempted menthol in 2009, to the dismay of health advocates. So the proposed changes may close the cigarette gap, and remove flavored cigars from the market, but make mint and menthol e-cigarettes relatively easily available.
Since his first days on the job, Gottlieb appears to have struggled with how to address e-cigarettes in that context.
In July 2017, the FDA delayed the compliance deadline for the regulation of e-cigarette products to 2022. This gave the industry five more years to file public health applications that show that their products are safe alternatives to conventional cigarettes and that they weren’t unduly targeting minors.
Gottlieb positioned the delay as a way to give manufacturers time to get in step with the new laws while ensuring smokers had access to cigarette alternatives that could save their lives. But some public health advocates viewed it another way: as a giveaway for the vaping industry, and a chance for e-cigarette makers to further expand their market share among kids at a time when e-cigarette use by teens has eclipsed conventional cigarette use.
“In this world, a delay of [five] years is a lifetime,” Matt Myers, president of the Campaign for Tobacco-Free Kids, told Vox last spring. “And the data seems to indicate this product is being used by kids all across the country.”
Meanwhile, the e-cigarette market has continued to grow. In 2017, the US market expanded by 40 percent, to $1.16 billion, with a lot of that growth driven by Juul.
As of March, Juul made up more than half of all e-cigarette retail market sales in the US, according to Nielsen data. Considering it has only been on the market since 2015, and there are hundreds of other devices available to consumers, Juul’s market share is staggering.
More recently, the FDA has been taking action against Juul and teen e-cigarette use — but has stopped short of changing the compliance deadline. In April, the FDA took the unusual step of demanding Juul Labs submit documents about its marketing and research and what it knows about Juul use among young people. The move was part of the FDA’s new Youth Tobacco Prevention Plan.
In May, the agency followed up by sending requests for information to four other e-cigarette makers that also appear to be marketing to young people.
Last September, FDA announced it has again sent warning letters to Juul Labs and the manufacturers of other vaping devices, giving them 60 days to come up with plans that minimize their products’ appeal to minors. It’s also warned more than 1,000 retailers accused of illegally selling e-cigarettes to minors to stop.
Juul Labs, the maker of Juul, this week appeared to be preempting the FDA’s crackdown, with an announcement it would stop selling its fruit and dessert-flavored products in more than 90,000 brick-and-mortar retail stores, and halt its marketing on Facebook and Instagram.
But the FDA is expected to use the regulatory authority it already has over e-cigarettes to impose the new restrictions. Along with the menthol ban, the agency is striking a good balance, public health researchers said.
“Whether you’re heavy or light smoker, on the harm reduction it doesn’t make sense to have the far more harmful products more appealing in terms of flavors or more accessible in terms of retail availability,” said University of Waterloo public health researcher David Hammond.
The new restrictions will do both: crack down on access to vaping, which can lead to smoking, while also “tightening screws on smoking,” Hammond added.
“This is a thoughtful approach and will help reduce the current epidemic,” said David Liddell Ashley, the previous director of the office of science in the Center for Tobacco Products at FDA. But, he added, “I do not think it will completely solve the likely increase in cigarette smoking, which will result from the use of e-cigarettes by youth.”
That would require a number of extra steps — like engineering products so they’re less addictive and cracking down on marketing. And the FDA has stalled on both these fronts.