WASHINGTON (AP) — Senators on Wednesday sharply criticized top health and law enforcement officials for not doing more to combat the rise of illegal electronic cigarettes in the U.S., a multibillion-dollar business that has flourished despite haphazard enforcement.
Democrats and Republicans on the Senate Judiciary Committee expressed frustration and despair as they questioned Food and Drug Administration and Justice Department officials about attempts to maintain control over the e-cigarette industry, which now includes thousands of flavored, unapproved e-cigarettes from China.
These products, including brands like Elf Bar, have become the most popular choice among American teens who vape.
“I simply do not understand how the FDA and the Department of Justice could allow thousands of products to remain on store shelves without the manufacturers receiving appropriate approval or, in some cases, without even submitting an application,” said Judiciary Committee Chairman Dick Durbin.
The Illinois Democrat showed a photo of brightly colored e-cigarettes, including dragon fruit and watermelon gum flavored ones, which he said a Senate staffer took at a vaping shop near the FDA campus in Maryland.
“These illegal products, which are clearly intended for children because of their flavors, are being sold in the shadow of the FDA building,” Durbin said. “How can this happen?”
Brian King, FDA’s tobacco chief, said the agency’s work has been slowed by a backlog of applications from e-cigarette companies for U.S. approval, which regulators are required by law to review.
“The sheer volume of this product landscape requires that we take the time to conduct scientifically and legally defensible reviews of the 27 million applications,” King said.
The FDA has approved a handful of e-cigarettes as an alternative for adult smokers. All other products on the market, including gigantic sellers like Juul, are still awaiting review or will be deemed illegal by regulators.
Deputies also heard from a high school senior who said she became addicted to nicotine after trying a “Blueberry Ice” e-cigarette in ninth grade.
“I thought I was just enjoying the taste, but soon my 14-year-old brain started craving more and more nicotine,” said Josie Shapiro of Seattle. “I’ve tried over and over to quit vaping, but it’s really, really hard.”
The FDA and the Justice Department have legally banned about a half-dozen e-cigarette companies from selling products that might appeal to youth. Yet many more manufacturers continue to bring novel products to market, especially e-cigarettes that cannot be refilled and are thrown in the trash.
Deputy Assistant Attorney General Arun Rao told senators that regulators at the Justice Department and other agencies have signaled that the issue of e-cigarettes is “a priority across the executive branch.”
“I’m against signals,” said Durbin. “Do something!”
On Monday, the FDA and the Justice Department announced a novel government task force that will include the U.S. Postal Service and other agencies to address the problem, a move recommended in 2022 by an outside panel that reviewed longstanding complaints about the FDA’s tobacco program.
Republican Senator Thom Tillis called the timing of the announcement a “political stunt” and criticized the absence of other federal agencies from the initiative, including Customs and Border Protection.
“If the timing of the task force formation wasn’t already a testament to how serious FDA is about combating the flood of illegal e-cigarettes, then CBP’s exclusion from the task force makes it crystal clear,” said Tillis, who represents North Carolina, the country’s largest tobacco producer. He urged officials to focus enforcement on brands from China rather than major domestic manufacturers like Reynolds American.
The FDA can investigate and recommend cases, but only the Justice Department can file lawsuits. Federal prosecutors can decline to prosecute cases for a variety of reasons, including competing priorities, weaknesses in the case, or the potential consequences of losing in court.
The FDA has used its own authority to send hundreds of warning letters to vape shops and e-cigarette manufacturers in recent years, but the letters have done little to deter the companies from selling novel, illegal products.
Industry analysts estimate that disposable vaporizers make up 30 to 40 percent of the roughly $7 billion market. The two best-selling disposable vaporizers – 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 approved by the FDA but remain widely available, in some cases under novel names, logos and flavors. More than half of the 2.8 million teens and adolescents in the U.S. who smoked e-cigarettes last year reported using Elf Bar.
King pointed out that products like Elf Bar cannot be sold legally in China because the government there has banned non-tobacco-flavored e-cigarettes.
“You can’t sell them in China, but you can sell them in the United States?” responded Senator John Cornyn of Texas. The Texas Republican vowed to introduce legislation to address what he called the “outrageous and unacceptable status quo.”
Overall, e-cigarette use among teens has declined 60% since its all-time high in 2019, as a result of the COVID-19 pandemic and novel age restrictions and flavor bans on e-cigarettes and other tobacco products.
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The Associated Press Health and Science Department receives support from the Science and Educational Media Group of the Howard Hughes Medical Institute. All content is the responsibility of the AP.
