FDA Proposal Would Worsen Teen E-Cigarette Use

NACS CEO Henry Armour argues the agency should actively enforce laws against sales to minors.

July 08, 2019

ALEXANDRIA, Va.—In an op-ed published by CNBC today, Henry Armour, NACS president and CEO, addresses the U.S. Food and Drug Administration’s (FDA) proposed policy changes to deal with the public health risks associated with the increased use of e-cigarettes and other vape products among young people in the United States. Armour writes that meaningful reform is needed to address the problem and commends FDA for its attention to the issue.

The FDA’s proposed policy, however, cuts against what is known about young people getting e-cigarettes, he notes. The proposal is counterproductive; it will make youth e-cigarette use and addiction worse, not better.
FDA has proposed that sales of the flavored e-cigarettes it targets should be restricted to adult-only stores, such as vape shops and tobacco stores, or on the internet. The flawed assumption central to FDA’s proposal is that young people primarily get e-cigarettes from convenience stores—where minors can be in the store and most e-cigarettes are sold. That may have some superficial appeal. But the data say that’s just not true. 
According to an August 2018 study cited by the FDA in its policy proposal, minors get most of their e-cigarettes from adults old enough to buy them. Those e-cigarettes are then re-sold or given to minors. More than half of the minors who use e-cigarettes get them this way. In fact, the study showed that only 31.1% of minors who obtained e-cigarettes bought them in a retail transaction.
The counterproductive nature of FDA’s policy becomes clear when examining the data on those retail sales, Armour writes. Almost one-third (32.2 percent) of minors who buy e-cigarettes at retail buy them online. Then, 22.3% buy them in vape shops, and 16.4% buy them in tobacco stores. Altogether, those three types of outlets account for nearly 70% of the retail purchase of e-cigarettes by minors. But those are the three types of retail outlets that the FDA is proposing will have a monopoly on selling flavors—the very flavors that FDA says are most appealing to minors. FDA’s proposal will push minors to buy product from the outlets that already have the biggest problem selling to minors. That will increase youth e-cigarette use.
The data on the outlets that FDA proposes to stop from selling flavored products make FDA’s proposal even more confusing. The same study showed that only 5.6% of minors who bought e-cigarettes at retail purchased them in convenience stores—so those stores are the source for less than 2% of minors. In all, vape and tobacco stores sell about 20 times as many e-cigarettes to minors as convenience stores, even though c-stores outnumber them by 15 to 1. The FDA’s proposal clearly is not focused on where the problem is.
The government’s numbers confirm this picture. Studies of youth e-cigarette use by both the CDC and the FDA indicate that 86% of minors who use e-cigarettes do not get them from any store. Of those that do get them from a store, 76% of them get the products from vape shops. To put things in perspective, parents are giving twice as many e-cigarettes to their underage kids than those sold to minors in convenience stores.
All this shows the FDA headed in the wrong direction. To keep e-cigarettes out of the hands of minors requires a multifaceted, even-handed approach. To target one disfavored retail channel will leave large holes in our policy. Holes that kids who want e-cigarettes will gladly exploit. Further, FDA’s proposal sets a dangerous precedent of a regulator picking economic winners and losers in the marketplace. The government should not do that, especially when it has no public health justification in the data for its decision.
To make a positive difference, FDA should actively enforce the law against sales to minors. Based on the data, enforcement should be focused on internet, vape shops and tobacco stores first—precisely the locations where kids would be pushed under FDA’s proposed policy.  
Armour is grateful that the Senate is taking action to address the internet sales of e-cigarettes. In early May, senators Feinstein (D-CA) and Cornyn (R-TX) introduced legislation that will update the Prevent All Cigarette Trafficking Act (PACT) to include e-cigarettes and require an ID check upon delivery of these products. Hopefully, Senate Majority Leader Mitch McConnell will support this legislation and make sure it passes the Senate quickly.
The bottom line is that FDA’s policy needs to be dramatically changed. If it isn’t, then the data show clearly that youth e-cigarette use will increase because of, not in spite of, FDA’s actions.