ELiquid Flavor Bans Fuel Thriving Black Market

In April, in the midst of New York’s Covid-19 peak, law makers attended to what they considered very important business: banning the nicotine ejuice flavors that the vast majority of adults prefer. That strict ecig laws punish marginalized groups and flavors are not the primary reason why kids vape hardly matter any more.

Michael Bloomberg has invested hundreds of millions to extinguish nicotine vaping and fountains of misinformation continue to flood the conversation on cigarette alternatives with their poisoned waters.

Much of the ill-will towards vaping by the general public can be traced to the conflation of nicotine and THC vaping, such as the failure of CDC to announce that vaping lung disease was linked to THC carts until December, even though Utah, New York and cannabis industry experts had drawn this conclusion by labor day.

Another threat is debunked research like the vaping heart attack study by Truth Initiative lead scientist Stanton Glantz. USA Today took a deep-dive into this unreliable research, which was another case of the retraction never getting the attention of the headline.

Critics of Glantz and the anti-vaping industry have determined that this case of shoddy research may just be scratching the surface. An example of errors and myths driving the poor policy decisions such as vape flavor bans.

Eliquid Black Market

Systematic attacks on vaping in the media and Bloomberg money have made vaping flavor prohibition a predictable outcome. But an embrace of total nicotine abstinence is simply not in the cards for many adult vapers.

If they want to stay within the confines of the law, vapers can reunited with combustible cigarettes, endure the tobacco ejuices they had previously rejected or utilize nicotine replacement therapy, which the New England Journal of Medicine found substantially less effective than vaping for smoking cessation.

Another option is to locate alternate sources of the bright and complex flavors they prefer on the black market. Not surprisingly, this option has proven to be the most palatable for many and the black market for flavored ejuices is said to be thriving.

New York based Filter Magazine, was able to interview many dozens of purveyors of black market flavored eliquids. What they found will sound familiar to anyone with knowledge about the War on Drugs or any historical sense of the comprehensive failure of the Eighteenth Amendment and alcohol prohibition.

According to the CDC, underage drinking kills 4300 minors annually and sends 130,000 to the emergency room. It manages to escape the attention that vaping receives due to the simple fact the wealthiest Americans imbibe frequently while most gave up smoking decades ago. It is much easier to ban and restrict an alien habit that seems strange and disreputable.

Tales from the Black Market

Nic Holden, a pseudonym, makes around $150 a day selling nicotine out of his car in Long Island, New York parking lots. A now out of work vape shop employee, customers climb into his passenger seat with cash in hand, an expedient forced upon him by the state flavor ban that undermines social distancing recommendations. With around 50 loyal customers, he uses a burner phone and operates in much the same manner as a purveyor of illicit drugs.

A New York Eliquid manufacturer stocked on liquid ejuice and plans to service existing customers at an alternate location.

In Massachusetts, which enacted their flavor restrictions even earlier, one vape shop owner has a locked room in the back that serves as a 21st century speakeasy. “My desire has been to be successful in a legitimate way. What the state is doing is taking the legitimacy of my success away.”

Filter interviewed Clive Bates, a former UK public health official, who was not surprised by any of this:

“Black market behavior is unintended and unwelcome, but easily anticipated. The fact that no one imposing these bans has taken this into account is the same kind of dumb failure that has led us into the War on Drugs.”

Clive Bates, UK Health Official

New York is levying a fine of $100 per flavored nicotine vape in inventory which can mean tens of thousands in fines, and a strong motivation to head underground.  

That ejuice is still available on the black was very predictable, especially in an industry where adult vapers have a long tradition of formulating their own ejuices, unregulated devices were once fashionable and nicotine remains readily available in the very cigarettes that most vapers are looking to eschew.

Vaping is at much a hobby as a vice for many users. Savvy and passionate vapers do not hesitate to proselytize about the advantages of vaping versus smoking.

They are not alone, the UK’s National Health Service hosts a website “Using E-Cigarettes to Stop Smoking”, and have long since embraced a humane harm reduction approach much more befitting the 21st century than a demand for total nicotine abstinence, severe restrictions or the nicotine replacement therapies that were demolished by vaping in a New England Journal of Medicine study.

The UK has a single payer healthcare system and tax payers have skin in the game. They are quick to throw out any health modality that proves ineffective or overly expensive. Herbal medicine, chiropractic care, herbal medicine and homeopathy have all gotten the axe because they have been judged not to deliver. Vaping on the other hand has been embraced and the UK argues that the EU would be wise to follow their lead, based on the superior health outcomes and reduced smoking rates.

In upstate New York, Sally offers illegal flavored nicotine to her core of most loyal clients. Her flavor lab has been moved to her house and her trunk is loaded with coils and tanks, “like something out of a mafia movie”.

She is pulling in more money now, with no overhead and also relies on a burner phone. “Before this, I maybe had a single parking ticket,” she told Filter. “I feel like a crook. But I should have been doing this so long ago.”

Most of her clients are between 50 and 80, and like so many of the eliquid sellers interviewed by Filter, her goal is as much to keep her customers from resorting to cigarettes as it is it a risk-reward calculus.

Flavor Ban Passed Under Cover of Covid

Any adult vaper in New York who had the rug pulled out from under them and no longer have access to their preferred cigarette alternative can blame New York’s Fiscal Year 2021 Budget.  Signed by Governor Cuomo on April 3rd, and with the ejuice flavor ban a late amendment, it is no surprise that it flew under the radar.

The flavor ban was passed on April 3, 2020. On April 2 and 3, 2020, Covid deaths approached 500 for the first time in the state of New York and peaked at 597 on April 6th.

What better way to silence a motivated by small minority of vapers and make their concerns seem frivolous than to bury their protests under an unrelenting death toll, refrigeration truck morgues and nursing homes turning into charnel houses.

One business owner chose not to use a pseudonym. Lake Shannon, owner of Phoenix Elixirs. Quoting Thomas Jefferson, he vowed to fight and ignore unjust laws and ships to all 50 states regardless of restrictions.

Gray Market Solutions?

In New York, there are in theory gray market work arounds for local Eliquid companies. Vape shops are still allowed to purchase nicotine and flavors but online sales of vaping accessories that aren't currently restricted as well as eliquids, have been defacto banned by onerous restrictions.

With flavors, ejuices and nicotine not to be used together but still available to shop owners, Nic Holden described the situation as being akin to marijuana paraphernalia. In the 1970s and early 1980s, bowls and pipes were widely available before being banished as the war on drugs heated up.

The flavors and nicotine cannot be displayed or mixed in house, but there is nothing to stop an enterprising vaper from doing so at home. Especially if provided with detailed instructions.

Dangers of the Black Market

During a time of rampant unemployment and uncertainty, the vape shop employees and owners find their livelihoods are under siege. A feature in Vice outlined ed other potentially catastrophic side effects beyond livelihoods lost and lives upended.

Experts and legal vaping advocates VICE spoke to pointed out that supply-side intervention never worked in the war on drugs. That made it all the more bizarre that it might become the policy weapon of choice now, in 2019. In fact, experts and legal vaping advocates said, bans at the federal or state or local level could just serve to worsen the problem they're trying to prevent by encouraging the kind of at-home or illicit experimentation that may have helped bring about the recent spike of vape-linked illnesses in the first place.


Vice, The War on Drugs Is Coming for Vapes, and It's Not Going to End Well

Nicotine vaping was absolved of blame in the vaping lung disease outbreak last fall but the fallout gave flavor bans a ton of momentum. The CDC confirmed in December that vitamin E acetate in black market THC carts was the cause of vaping lung disease and not one nicotine ejuice sample tested positive for this oil.

Black market ejuices are not likely to be contaminated with vitamin E acetate. It simply does not work in nicotine ejuice formulations, as the CDC explained:

“Pure THC oil has a viscosity like that of vitamin E acetate. Cutting THC oil with vitamin E acetate has been reported to be common in the illicit market.9-11 The FDA reports that most case-associated THC product fluids contain vitamin E acetate, at an average concentration of 50% by weight, ranging from 23 to 88%.8 By contrast, the FDA detected no vitamin E acetate in 197 case-associated nicotine products analyzed to date. The viscosity of vitamin E acetate makes it undesirable as an additive to nicotine solutions; the propylene glycol and vegetable glycerin in nicotine solutions create a fluid with a much lower viscosity than that of vitamin E acetate.

Centers for Disease Control, ” Vitamin E Acetate in Bronchoalveolar-Lavage Fluid Associated with EVALI”, 12/20/2019

Nevertheless, the potential for bad actors on the black market is far greater than it is when eliquids are being sold through licensed businesses.

The black market sellers interviewed expressed no interest to selling to minors, a logical choice lest they evoke the wrath of the state, the robust age verification software used in a modern vape shops would not be available to many of them.

The most obvious impact is availability. Smokers looking to switch to vaping will find it much harder to navigate the highways and byways of the black market versus visiting a vape shop in person or ordering online.

And these vape bans do not even cover the onerous PMTA process which hangs over the vaping industry like the Sword of Damocles. The cost and extensive effort it takes to complete the process could very well represent regulatory capture of the highest order. Only the largest vaping stakeholders, generally Big Tobacco companies, possess the resources and economic wherewithal to complete the application process. The vaping industry may soon be reshaped to look a lot like the cigarette market.

Vapor4Life

The goal of Vapor4Life has always been to help smokers switch to vaping and for vapers to reduce their nicotine level with an eye on quitting. We have no interest in selling our products to non-smokers or minors. We rigorously verify every order with cutting-edge software to make sure that every customer is 21 or older.

We adhere to all state, federal and local vaping regulations regarding flavor bans. Check out our resource page State Vape Ban Laws for additional details.

That being said, we do not agree with many of the restrictions which make it difficult for smokers to switch to vaping and punish marginalized smokers. San Francisco punished marginalized vapers with strict e-cig laws a year ago, which would appear to be a complete betrayal of values in a city that offers needle exchanges and has pushed for safe injection sites.

Flavors are not the primary reason for the teen vaping epidemic and none of the battery of laws, including tobacco 21, were given a chance to work before additional restrictions were piled on.

Moreover, the vaping lung disease outbreak traced to THC carts was used to leverage many of these bans. Combined with the fraudulent science and the CDC finding that flavors were not the primary or even secondary motivation for underage vapin, it can only be concluded that opponents of vaping are not acting in good faith.