It's been over four years since the Food and Drug Administration said it would fully enforce a ban on all flavored e-cigarettes. But at local smoke shops and online stores across the country, those vape pens are still for sale, and many end up in the hands of teenagers.
Now, Congress is shining a spotlight on the lack of enforcement and pushing the FDA to do more.
The Senate Judiciary Committee is holding a hearing Wednesday with the head of the FDA's Center for Tobacco Products, which has the authority to regulate and monitor tobacco manufacturing and sales. Senators will also hear from a Department of Justice official, anti-smoking advocates and others.
Nicotine products are illegal for anyone under 21 years old, but the latest National Youth Tobacco Survey found that 2.8 million high school and middle school students are tobacco users. About 70% of those students are smoking flavored e-cigarettes, like ElfBars.
Stacey Younger Gagosian is the senior vice president for public policy at the Truth Initiative. She said teenagers today often don't realize how much nicotine they're consuming.
"The products are getting bigger, meaning more volume. The products are getting cheaper, and they have a higher nicotine content," she said.
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The FDA is responsible for approving nicotine products before they're sold in the U.S. To date, only 23 e-cigarette products have been authorized, and none of them are flavored.
"For adult smokers who completely switched to those products, they could be helpful, and that is why they were authorized," Younger Gagosian said. "But all these other products have not been found to be helpful for anyone, and particularly for the young people who unfortunately are using them the most."
The Center for Tobacco Products recently increased enforcement of the flavored e-cigarette ban. In the last 16 months, nearly 60 manufacturers and 140 retailers have been fined the maximum amount allowed, which is around $20,000. But the most recent data from the Federal Trade Commission shows e-cigarettes are a $2.7 billion industry in the U.S.
The Center for Tobacco Products is funded entirely from fees paid by the tobacco industry, but the agency can't collect those fees on e-cigarettes. Changing that would allow them to hire more staff and improve enforcement, but that would require Congress to act.
In a response to Scripps News, an FDA spokesperson said, "Unfortunately, some parties choose to ignore FDA warnings and continue to sell potentially violative products. With finite resources, the FDA must prioritize its compliance and enforcement actions to make the greatest impact on public health."
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The Biden administration is taking steps to improve enforcement. This week, the Department of Justice and the FDA announced the creation of a new task force focused on curbing the distribution and sale of illegal e-cigarettes. Anti-smoking advocates say this is the type of oversight that's needed.
"The problem is huge, and so it's going to take a lot of work and a lot of coordination [and] cooperation at mostly the federal level, but even at the state level," said Younger Gagosian.
