News Digest on the E-Cigarette Industry

Niusha Tavassoli, CLS ’21

In the past several weeks, there have been many headlines about vaping-induced hospitalizations. When looking at who to blame for this pandemic, there has been a lot of finger pointing from state and federal government officials. Earlier this week, Acting Chief of the FDA, Ned Sharpless, expressed that he felt the FDA should have acted sooner and is now playing a game of catch up to regulate the vaping industry.^[1] At the center of this controversy is Juul Labs, a Silicon Valley based e-cigarette start-up that has been valued at $35 billion.^[2]

In the past two years, there has been an uptick in vaping and e-cigarette usage. This uptick is especially startling when looking at teen e-cigarette usage. According to a statistic provided by the FDA, from 2017 to 2018, the number of high school students who reported current e-cigarette use within the last 30 days increased 78% to include a total of approximately 3.05 million American high school students.^[3]

E-cigarette companies, and predominantly Juul Labs, have been criticized by government officials for targeting their products to the younger populations due to the style of their advertising and the use of flavored products. Public health officials have stated that studies show that e-cigarette flavors encourage youth use of e-cigarettes and can in turn lead youth to become tobacco users.^[4] Additionally, the fact that the Juul vaporizer does not resemble traditional e-cigarettes is another factor that is attributed to its success amongst youth. However, Juul spokespersons stand by their products being an alternative for those trying to quit smoking.

“In 2016, FDA finalized a rule extending CTP’s regulatory authority to cover all tobacco products, including electronic nicotine delivery systems (ENDS) that meet the definition of a tobacco product. FDA regulates the manufacture, import, packaging, labeling, advertising, promotion, sale, and distribution of ENDS, including components and parts of ENDS but excluding accessories.”^[5] However, this rule has clearly not been utilized to control the current epidemic.

The Trump Administration has recently announced that there will be a forthcoming ban on all fruit-flavored e-cigarette products, unless approved by the FDA.^[6][7] Amidst the controversy, the CEO of Juul Labs, Kevin Burns, has resigned and the company has agreed to halt lobbying efforts against the ban.^[8]

However, as the Federal government has been slow to act, local governments have taken matters into their own hands. Out of frustration, many cities, including San Francisco where Juul is headquartered, have extended their own local bans on flavored tobacco products to temporarily ban the sale of e-cigarettes entirely beginning in 2020.^[9] Many other cities and states, such as Michigan, are following San Francisco’s suit.^[10] In fact, Massachusetts has taken the strongest stance against vaping, becoming the first state to place a temporary 4-month ban on e-cigarettes after the vaping-induced deaths of 9 individuals.^[11]

The regulations being implemented now are an attempt to clean up the mess that has been created by the lack of regulatory oversight. However, this raises the question of whether these regulations will now do more harm than good. While states are proposing banning e-cigarettes, they are still selling cigarettes and other tobacco products. It is important to consider whether these regulations will encourage the adults using e-cigarettes as a smoking aid and the youth who are now addicted, to turn to other tobacco products with known and serious harms. These realizations are crucial, especially in light of the fact that there is no specific vape product that has been linked to the vaping-induced hospitalizations.^[12] Furthermore, many states have regulations banning tobacco sales to individuals under the age of 21.^[13] Effective enforcement of the regulations already in place could counteract the allure of the flavored pods. All in all, the implications of regulating the industry are important considerations and will have lasting consequences.

^[1]Thomas M. Burton, FDA’s Acting Chief Says Agency Acted Too Slowly to Avoid Vaping Crisis, Wall St. J. (Sept. 25, 2019), https://www.wsj.com/articles/fdas-acting-chief-says-agency-acted-too-slowly-to-avoid-vaping-crisis-11569433928?mod=searchresults&page=1&pos=7.

^[2]Angelica LaVito, Tobacco giant Altria takes 35% stake in Juul, valuing e-cigarette company at $38 billion, CNBC (Dec. 20, 2018), https://www.cnbc.com/2018/12/20/altria-takes-stake-in-juul-a-pivotal-moment-for-the-e-cigarette-maker.html.

^[3]2018 NYTS Data: A Startling Rise in Youth E-cigarette Use, FDA (Feb. 06, 2019), https://www.fda.gov/tobacco-products/youth-and-tobacco/2018-nyts-data-startling-rise-youth-e-cigarette-use.

^[4]2018 NYTS Data: A Startling Rise in Youth E-cigarette Use, FDA (Feb. 06, 2019), https://www.fda.gov/tobacco-products/youth-and-tobacco/2018-nyts-data-startling-rise-youth-e-cigarette-use.

^[5]Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems (ENDS), FDA (Sept. 12, 2019), https://www.fda.gov/tobacco-products/products-ingredients-components/vaporizers-e-cigarettes-and-other-electronic-nicotine-delivery-systems-ends.

^[6] Sheila Kaplan, Trump Administration Plans to Ban Falvored E-Cigarettes, N. Y. TIMES (Sept. 11, 2019), https://www.nytimes.com/2019/09/11/health/trump-vaping.html.

^[7]Richard Harris and Carmel Wroth, FDA To Banish Flavored E-Cigarettes To Combat Youth Vaping, NPR (Sept. 11, 2019), https://www.npr.org/sections/health-shots/2019/09/11/759851853/fda-to-banish-flavored-e-cigarettes-to-combat-youth-vaping.

^[8]Bobby Allyn, Juul Accepts Proposed Ban On Flavored Vaping Products As CEO Steps Down, NPR (Sept. 25, 2019), https://www.npr.org/2019/09/25/764201798/juul-will-agree-to-ban-on-flavored-vaping-products-says-its-ceo-is-stepping-down.

^[9]Laura Klivans, San Francisco Bans Sale of E-Cigarettes, NPR (Jun. 25, 2019), https://www.npr.org/sections/health-shots/2019/06/25/735714009/san-francisco-poised-to-ban-sales-of-e-cigarettes.

^[10]Hannah Knowles, Massachusetts to ban sale of all vaping products for 4 months in toughest state crackdown, Wash. Post (Sept. 24, 2019), https://www.washingtonpost.com/health/2019/09/24/massachusetts-ban-all-vaping-product-sales-months-toughest-state-crackdown/.

^[11]Laurie McGinley, Michigan becomes first state to ban flavored e-cigarettes, Wash. Post (Sept. 04, 2019), https://www.washingtonpost.com/health/michigan-becomes-first-state-to-ban-flavored-e-cigarettes/2019/09/03/34f234c6-ce4c-11e9-8c1c-7c8ee785b855_story.html.

^[12]Hannah Knowles and Lena H. Sun, What we know about the mysterious vaping-linked illness and deaths, Wash. Post (Sept. 27, 2019), https://www.washingtonpost.com/health/2019/09/07/what-we-know-about-mysterious-vaping-linked-illnesses-deaths/.

^[13]Michael Greenwood, Banning tobacco sales to people under age 21 reduces smoking, Yale News (Jul. 26, 2019), https://news.yale.edu/2019/07/26/banning-tobacco-sales-people-under-age-21-reduces-smoking.