Biden should close the disposable e-cigarette loophole

Last year, California voters supported Proposition 31, a ballot referendum banning the sale of flavored tobacco products in California. 

Despite this ban, which now makes it illegal to sell flavored tobacco products in California, recent on-the-ground reports show that flavored tobacco products are abundant on many store shelves. This can be attributed to two primary factors:  confusing and conflicting guidance regarding what products are legal for retailers to sell, and a lack of enforcement of the ban.

While enforcement of the California ban is a state and local concern, the Biden administration can take an important step to help provide clarity on flavor bans that can help get our kids off flavored e-cigarettes. Contributing to states’ unacceptable allowance of their sale is an oversight in federal law that inadvertently indicates these products are safe. 

In January 2020, the Trump administration’s Food and Drug Administration (FDA) released guidance detailing the agency’s enforcement priorities relating to Electronic Nicotine Delivery Systems (ENDS) products. Among other things, the guidance banned flavored, cartridge-based ENDS products.

When announcing the policy, Trump administration officials claimed their actions were designed to “combat the troubling epidemic of youth e-cigarette use” while “maintaining e-cigarettes as a potential off-ramp for adults using combustible tobacco.”

I agree that we must help adult smokers transition away from cigarettes to a less risky form of nicotine delivery, and ultimately from nicotine altogether. However, by excluding disposable products from its definition of “cartridge-based ENDS products,” the FDA’s flavor restrictions do not apply to flavored disposable e-cigarette products, which children are using at an alarming rate and unregulated foreign producers are manufacturing. 

Unfortunately, children are now being targeted through this loophole. Walk into your local convenience store, look across the counter, and you will see these disposable e-cigarette products in flavors such as iced apple mango, strawberry, and pineapple lemonade — selling at affordable prices. These flavored disposable e-cigarettes also highlight their “sleek design” and promise that the flavored disposable e-cigarette “can be easily carried in your pocket.” Alarmingly, since the FDA policy went into effect, disposable e-cigarette usage among high school youths has spiked 2,188 percent (since 2019), according to the 2022 Centers for Disease Control and Prevention (CDC) National Youth Tobacco Survey.

President Biden could help address the problem by directing the FDA to revise its guidance by deleting relevant footnotes; amending the guidance to prioritize enforcement to include “flavored disposable ENDS products”; and ensuring that the guidance applies to synthetic nicotine. 

But the clock is ticking.

Like many other unregulated products manufactured in China or Mexico, these flavored disposable e-cigarettes on occasion have been laced with dangerous drugs such as fentanyl. School districts across the country are alerting parents about these products, since illicit fentanyl is up to 100 times more potent than morphine and many times that of heroin. 

Fentanyl has taken hundreds of thousands of American lives. According to data from the National Safety Council, fentanyl accounted for 53,480 preventable deaths in 2020 — a 59 percent increase from the year prior. A recent article in New York Magazine states that “mysterious upstarts” are selling e-cigarettes “shipped in from China” and that “(c)ounterfeits are everywhere.” Leaders from health organizations such as the American Lung Association have called upon law enforcement to “pursue these manufacturers or retailers when they continue their illegal behaviors and actions.”

I urge President Biden to close the Trump-era loophole on flavored disposable e-cigarettes. Doing so would not only provide much-needed clarity to state and local policymakers across the country, but also would go far to protect our children from flavored disposable e-cigarettes.

Jason Altmire was a member of Congress from 2007-2013. He is an adjunct professor of health care management at the Texas Tech University Health Sciences Center. Follow him on Twitter @jasonaltmire.