FDA Considers Juul and Vape Pod Ban

FDA Shifts Focus from Flavors to Pod Systems

FDA Commissioner Scott Gottlieb may be on the way out, but it is too early for the vaping industry to breathe a sigh of relief. As Gottlieb made clear in an interview on Fox News, the FDA considers the teen vaping epidemic to be an enormous public health crisis and is now considering a new approach to e-cigarette regulations.

In an interview will Bill Hemmer, flavors and flavor bans were not mentioned once. Instead a possible ban on pod and cartridge based systems was proposed. This is an entirely different tack than the FDA e-cig regulations that were announced last fall, which focused on flavors, age verification and retail outlets.   

“If we can’t start reversing these trends this year, and don’t see these rates start to come down, we will have to take more dramatic action. And we think we know the actions we will have to take. We will have to look at the pod based e-cigarettes, cartridge based products, as a category and potentially take them off the market if we can’t start to bring down these youth use rates because it’s intolerable.”

FDA Commissioner Scott Gottlieb

Gottlieb Threatens Juul Via Tweet

Juul in the FDA’s Crosshairs, Again

This threatened crackdown on pods was a shot over Juul’s bow. The FDA clashed with Juul and Altria this winter over perceived double dealing over the Marlboro maker's purchase of a 35 percent stake in Juul. Juul pulled some of their "kid-friendly", whatever that really means, flavors from shelves but an alliance with Altria would vastly expand their retail shelf space holdings. Altria’s had vowed to not enter the pod system universe, and emerged with a major stake in the industry leader Juul.

As the vaping industries dominant player, Juul has been saddled with considerable blame for their product’s popularity with minors. But not only Juul would be hit with this ban. The Centers for Disease Control is currently in the field collecting data for their 2019 Tobacco Youth Survey. Gottlieb stated if they find another 30 to 50 percent increase, on top of last year’s spike:

“I think we will have to look at actions that would address this as a category. And not just certain products but the entire category as a pod-based products.”

Crusade Against Teen Vaping Backed By White House

Anyone hoping for respite on regulations after Gottlieb’s imminent departure may end up being sorely disappointed. He made it clear that a potential ban of pods has the unequivocal support of the White House. Just last week in his Budget for a Better America, Trump proposed a massive user fee on e-cigarettes to help pay for resources to reduce underage vaping.

Referring to the pod ban, Gottlieb described how his eventual replacement will stay the course

“This has strong support from the Secretary of Health and Human Services, Alex Azar, and strong support from the White House, in fact they put out strong supportive statements today. I don’t think anyone in this administration wants to see kids becoming addicted to nicotine and becoming smokers.”

The Legacy of Scott Gottlieb

The legacy of Scott Gottlieb will be his aggressive stance on youth nicotine use. We agree with the sentiment if not his execution. At Vapor4Life, we have no interest in selling our products to minors and go to great lengths to ensure this does not happen. Our products are meant for adult smokers looking for a superior alternative to combustible cigarettes. In this regard, his language on the subject is tough but fair.

“For a child who hasn’t been initiated on nicotine…there’s no redeeming value by these e-cigarettes being used by children.”

Although we do not agree with his intrusive regulatory approach, Gottlieb does deserve some credit for acknowledging the fact that e-cigarettes can help adult smokers. This is a point that many anti-vaping radicals refuse to concede. Although we have a long way to go to match the enlightened view taken by the National Health Service in the UK, Gottlieb did defend e-cig use by adults in the Fox interview.

“We believe these products are less harmful than smoking and for a currently addicted adult smoker who can quit cigarettes by migrating onto an e-cigarette they are probably having a positive impact on their health, and maybe a significant impact on their health.”

National E-Juice Flavor Ban

Scott Gottlieb apparently noticed that the spike in teen vaping correlated with the introduction of highly potent nic salt e-juices, and concealable pod systems. He is a doctor and trained scientist, so is it fair to assume that he realizes correlation does not imply causation.

Members of Congress apparently are not interested in how nic salts, higher nicotine levels or convenient pod systems make discrete vaping easier. They are still hung-up on the outmoded fruit flavor fallacy.

This zombie vaping myth refuses to die. It is predicated on the notion that sweet fruit and dessert flavored ejuices have been created to hook children. It does not stand up to close scrutiny, but makes for a good soundbite.

"This e-juice tastes like Cinnamon Toast Crunch. My children loved Cinnamon Toast Crunch when they were kids during the Reagan-era. So this e-juice must be targeting kids."

Sadly, this nonsense resonates with enough people to pose a serious threat to the industry. What critics of sweet ejuices and colorful packaging fail to realize is that retro e-juice packaging targets nostalgic adult vapers and not minors.

An e-juice patterned after 1980s sugary breakfast cereal, moon-landing era pop culture touchstones and 1990s candies are not meant to appeal to kids. These design elements are incorporated in an effort to standout in a very crowded ejuice market. They clearly appeal to adults who enjoyed them decades earlier. I hate to break the bad news. But what was cool when you were a kid is probably not even a blip on the radar of today's teen.

Marketing strategies aside, Dr. Konstantino Farsalino’s study of 69,000 adult vapers conclusively demonstrated that the majority of adults prefer ejuices with sweeter flavor profiles.

This science does not matter to Congresswoman Diane DeGette (D-Colorado), who submitted the SAFE Kids Act to the House this, cited of an interesting example of an e-juice targeting children: Tutti Frutti. Seriously. Decades have passed since that song was a pop culture fixture. She is correct that the sugar-coated breakfast cereal themed ejuices appeal to a younger generation. It just happens that the generation targeted is Generation X.

The SAFE Kids Act would institute a national e-cig flavor ban. Unlike alcohol, cigarettes, junk food and any number of other “vices”, apparently vaping must demonstrate it has a public health value in order to exist. What popular consumer items actually hit this threshold? Bicycles? Bar soap? Spinach?

Marginalized Populations Harmed By Strict E-Cig Laws

Vaping is an easy target because smokers and vapers are not heavily represented in higher income brackets, whereas drinking rates are highest among educated, high-income adults.

This explains why there is no call to for a renewed alcohol prohibition, despite the fact that 13.5 percent of high school students binge drink versus the 2.4 percent who use electronic vapor products daily. The CDC Alcohol Fact Sheet provides ample evidence that drinking is a scourge. It kills 88,000 people annually and is responsible for 10 percent of all deaths among adults aged 20 to 64.

The collective health cost of conventional cigarettes is also high. What politicians are forgetting is that prohibition does not work. Education and age verification are what they should be focusing on. Too many of the current proposals to reduce teen vaping end up hurting adult smokers and former smokers who vape.

Strict e-cig laws punish marginalized groups and funnel them back onto combustible cigarettes. It is ironic the Congresswoman who introduced the SAFE Kids Act claims to be a champion of the LGBTQ community, a group that as a whole would be disproportionately impacted by flavor bans and retail restrictions. The African American community, rural Americans and the poor would also suffer if their access to cigarette alternatives is curtailed.