WASHINGTON – Senators on Wednesday criticized top health and law enforcement officials for not doing more to combat the rise in illegal electronic cigarettes in the US, a multibillion-dollar business that flourished amid a haphazard application.
Democrats and Republicans on the Senate Judiciary Committee expressed exasperation and frustration as they questioned officials at the Food and Drug Administration and the Justice Department about their attempts to stay on top of the vaping industry, which has grown to include thousands of flavored and unflavored e-cigarettes. authorized, originating in China.
These products, including brands like Elf Bar, have become the most popular choice among underage teens who smoke.
“I simply do not understand how the FDA and DOJ allowed thousands of products to remain on store shelves when their manufacturers did not receive authorization or, in some cases, did not even submit an application,” said Judiciary Chairman Dick Durbin.
The Illinois Democrat displayed a photo of brightly colored e-cigarettes, including some with dragon fruit and watermelon gum flavors, that he said an employee took at a vape shop near the FDA’s Maryland campus.
“These illegal products, clearly designed for children because of their flavors, are being sold in the shadow of the FDA building, less than a mile from its headquarters,” Durbin said.
FDA tobacco chief Brian King said the agency has been slowed by millions of applications filed by vaping companies seeking approval, which regulators are legally required to review.
“The sheer volume of this product landscape requires us to take the time to conduct scientifically and legally defensible analyzes of the 27 million applications,” said King.
The FDA has approved some e-cigarettes — including Vuse — as alternatives for adult smokers. All other products on the market, including big sellers like Juul, are pending review or deemed illegal by regulators.
The FDA and DOJ have legally banned about a half-dozen vaping companies from selling their products in the U.S., but many other manufacturers launch new products, particularly disposable vaporizers that cannot be refilled and are thrown in the trash.
On Monday, the FDA and DOJ announced a new government task force, which will include the US Postal Service and other agencies, to try to resolve the issue. This step was recommended in 2022 by a external panel who reviewed long-standing complaints about the FDA’s tobacco program.
Republican Senator Thom Tillis called the timing of the announcement “a political coup” and criticized the absence of other federal agencies in the initiative, including Customs and Border Protection.
“If the timing of the task force’s formation wasn’t proof of how unserious the FDA is in combating the flood of illicit e-cigarettes, the FDA’s exclusion of CBP from the task force makes that clear,” said Tillis, who represents to North Carolina. , the largest tobacco producer in the country. He urged authorities to focus enforcement on brands from China rather than large domestic manufacturers like Reynolds American, the tobacco giant that makes Vuse.
Industry analysts estimate that disposable vaporizers represent 30% to 40% of the roughly $7 billion vaporizer market. The two best-selling disposables – Breeze and Elf Bar – generated more than $500 million in sales last year, according to Nielsen retail sales data analyzed by Goldman Sachs.
Both brands have been sanctioned by FDA regulators but remain widely available, in some cases with new names, logos and flavors. More than half of the 2.8 million U.S. teens and teens who vaped last year said they used Elf Bar.
King noted that products like Elf Bar cannot be legally sold in China because the government has banned non-tobacco-flavored e-cigarettes.
“You can’t sell them in China, but you can sell them in the United States?” Senator John Cornyn of Texas responded. The Texas Republican promised to introduce legislation that would address what he called the “outrageous and unacceptable status quo.”
Former FDA officials have long blamed bureaucratic wrangling between their agency and law enforcement for the slowness of legal action.
The FDA can conduct investigations and recommend cases, but only the Department of Justice can initiate lawsuits. Federal prosecutors may decline to pursue cases for a variety of reasons, including competing priorities, limited resources, perceived weaknesses in the case, or the potential repercussions of losing in court.
Using its own authorities, the FDA has sent hundreds of warning letters to vape shops and e-cigarette manufacturers in recent years, calling on them to remove or discontinue their products. But the letters did little to dissuade companies from selling new products.
Wednesday’s hearing is the first full session of the committee examining the vaping market since 2019, when lawmakers focused on Juul, the U.S. company widely blamed for sparking the underage vaping trend.
Under pressure from Congress and the FDA, Juul and other domestic manufacturers abandoned their flavored products and marketing campaigns in late 2019.
Overall, teen vaping is down 60% from its all-time high in 2019 following the COVID-19 pandemic and new age restrictions and flavor bans in e-cigarettes and other tobacco products.
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