A Congressional Proposal Could Create the Groundwork for a Vaping Black Market
After former Food and Drug Administration (FDA) Commissioner Scott Gottlieb took up the cause of underaged vaping as his signature issue, the nation responded with an overwhelming alarmist moral panic. Lawmakers from both parties have now joined this "craze" of fear associated around nicotine to propose and, in many cases pass, legislation that will dramatically change the e-cigarette market.
There seems to be no line for lawmakers as many give in to the demands of significant special interests. One particular bill could be the beginning of the end for the vaping industry. Reps. Frank Pallone Jr. (D-NJ) and Donna Shalala (D-Fla.) introduced the Reversing the Youth Tobacco Epidemic Act to much fanfare brought by influential public health and tobacco control advocacy groups.
After an analysis of the bill, I take no pride in saying that Pallone and Shalala are offering no workable solutions. First, the bill proposes a plethora of new regulatory tools for the FDA and codifies a user fee collection mandate for deemed e-cigarette and vaping products. The proposed law additionally bans the marketing of products to newly-classified minors under 21 years, raises the legal sales age from 18 to 21 years, places a ban on all flavors unless they are FDA approved, and provides additional industry reporting requirements enforced by the Federal Trade Commission.
The legislation additionally prescribes an amendment to the Food, Drug, and Cosmetic Act (FDCA) that would mandate a "prohibition against remote retail sales" nationwide no more than two years after passage and ratification (remote sales are categorized as purchases made online or through e-commerce points of sale). The bill ultimately would mandate the Secretary of Health and Human Services (HHS) and the FDA commissioner to promulgate rules that strictly govern the transactions of all electronic nicotine delivery systems (ENDS) as face-to-face endeavors in approved retail establishments.
After analyzing the flavor rules, all sweet flavors would be prohibited. The bill prescribes amendments to the FDCA that eliminate flavors like menthol, mint, strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, and coffee for all tobacco products (including deemed products like vapes). The only exception to the rules governing flavors under this bill falls into the laps of the HHS secretary and the commissioner of the FDA to approve flavors that meet specific criteria.
These two particular provisions provide a cause for concern in the independent "DIY" flights of the vaping industry. DIY manufacturers typically mix custom e-juices for their customers in stores and usually rely on e-commerce as a vital sales channel. There are thousands of vape shops that do this who employ thousands of people currently in the United States. This bill would cease these practices entirely. If we also consider the arguments for flavored vapes, a growing academic consensus reveals that flavors help smokers make the complete switch to ENDS devices from combustibles. That is why, if it passes and is signed into law, the bill would provide for an environment that would drive vapers underground for the products they want and give way to more aggressive proposals that could potentially criminalize vaping. Black markets flourish when laws and regulations are too restrictive. Just as we saw with the success of bootleggers in the times of alcohol prohibition, the illicit trade of any drug becomes a lucrative business that operates in a dangerous and unregulated setting.
This bill would not only kill benefits in tobacco harm minimization but cause more societal ills than a so-called "epidemic" of liquid nicotine ingestion among youth. A colleague of mine, Colin Mendelsohn of the Australian Tobacco Harm Reduction Association, found that criminalizing liquid nicotine has negative impacts that go well beyond nicotine use addiction cases. In Mendelsohn's home of Australia, liquid nicotine is considered an industrial poison and is regulated as an illicit substance by the country's state governments punishable by fines and prison time. However, one of the essential characteristics of the criminalization framework is an unsurprising number of undeterred vapers acquiring the products of their choice (nicotine-containing e-liquids) through a black market with no consumer protections.
"Without regulation, the contents of nicotine refill bottles are a mystery, labels are inaccurate, childproof bottles are not mandated, and there is no quality control or manufacturing standard," Mendelsohn wrote in 2017, noting the importance of legalization as a consumer protection.
The costs easily outweigh the benefits when entire swaths of the legal market are suddenly made illegal overnight. For example, some vaporizers available on the black market contain psychedelics like DMT which, by common sense, offers a more mentally harmful experience than nicotine. While I believe that there is cause to draw back the prohibitions on substances like DMT, I utilize this instance as an example of what could be on a vaping black market.
Banning nationwide e-commerce sales and characterized flavors for tobacco and deemed nicotine products will bring forth more challenges and hurt more people. Nicotine, as a substance, is one of the most misunderstood drugs. Why should we outright ban reduced-risk delivery methods for nicotine when researchers have found that this psychoactive drug is similar to caffeine? What happened to the successes we have seen with harm reduction interventions for other recreational drugs like cannabis and alcohol? Maybe, those questions will be answered when our regulatory systems go too far.