Congress calls on Biden administration to better regulate flavored disposable e-cigarettes to protect youth

Lawmakers are urging the FDA to prevent the marketing and sale of e-cigarette nicotine products to middle and high school-aged children.

Members of Congress are calling on President Joe Biden and his administration to take action against what they say is a major flaw in regulating flavored e-cigarettes that jeopardize the health of millions of American youth.

“These cigarettes are marketed and targeted towards children [and] many of our kids are smoking them,” said U.S. Rep. Sheila Cherfilus-McCormick (D-FL) during a recent interview with theGrio. 

This month, lawmakers in the U.S. Senate and House of Representatives targeted the Department of Health and Human Services (HHS) and the FDA, urging the federal agencies to act to prevent the marketing and sale of e-cigarette nicotine products to middle and high-school-aged children.

Vaping products, including flavored vape liquids and pods, are displayed at Gotham Vape in Queens, on September 17, 2019 in New York City. (Photo by Spencer Platt/Getty Images)

Cherfilus-McCormick introduced a bill in the House of Representatives on Feb. 9 that seeks to compel the federal government to better regulate e-cigarette manufacturers. The Disposable ENDS Product Enforcement Act of 2023 would direct HHS, which runs the FDA, to update its guidance on enforcing electronic nicotine delivery systems – or e-cigarettes –  and “other deemed products.”

The Florida congresswoman, a former health care executive who was elected to Congress last year, said her goal is to protect the health of young people and combat what she says is a popular trend.

“We heard from many of our constituents and schoolteachers that a lot of the children now are even smoking in the bathrooms,” she told theGrio. 

Rep. Sheila Cherfilus-McCormick, D-Fla., is seen in the Rayburn Room before a rally on the House steps of the U.S. Capitol to voice opposition to the Supreme Courts leaked draft opinion indicating the Court will overturn Roe v. Wade, on Friday, May 13, 2022. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

According to a 2022 report from the Centers for Disease Control and Prevention (CDC), more than 2.5 million U.S. middle and high school students currently consume e-cigarette products.

Cherfilus-McCormick said she believes the popularity of disposable flavored e-cigarette products results from intentional marketing, including child-friendly flavors like strawberries and cream, and pineapple. Of the more than 2 million children who self-reported smoking e-cigarettes to the CDC, nearly 85% used flavored e-cigarettes, and more than half used disposable e-cigarettes. 

The lawmaker also said there’s concern about where the products are sold and their visibility.

“As we tour the district, we go into different convenience stores, to gas stations, stores where we see children from all over running in… what do we see? We see these disposable ends that look like they’re child friendly and look like they might even be a candy,” she shared.

Senator Dick Durbin of Illinois also raised the alarm about the use of e-cigarettes among young people in a letter addressed to FDA Commissioner Robert Califf. In the Feb. 15 correspondence, Durbin challenged Califf to act more swiftly in the FDA’s authorization reviews of applications for manufacturers of some of the most popular e-cigarettes consumed by America’s youth. 

“To my dismay, and contradicting federal law, FDA has allowed unauthorized e-cigarette products to enter, and remain on the market for years,” the senator wrote. “And just recently, on your watch, FDA stated that it will not finish review of applications for the most popular e-cigarettes until December 31, 2023 – more than two years past a court order deadline to finalize review of these products. That is stunning.”

The letter continued, “We can estimate that between now, and FDA’s projected timeline, up to 1 million children are at risk of starting to use e-cigarettes.” 

When asked to comment on Durbin’s concerns and the bill introduced by Cherfilus-McCormick, a spokesperson for the FDA said, “The FDA will respond directly to Sen. Durbin’s letter and does not comment on proposed or pending legislation.”

In this photo illustration, Puff Bar E-Cigarette products sit on a counter on October 12, 2021 in Miami, Florida. According to a study done by the U.S. Food and Drug Administration and Centers for Disease Control and Prevention disposable e-cigarettes like Puff Plus are popular among teenagers. (Photo Illustration by Joe Raedle/Getty Images)

While some members of Congress are not satisfied with the FDA’s handling of flavored e-cigarette regulation, the agency has shown signs that it is cracking down on the industry. In October 2022, the FDA denied the applications for 32 Hyde products sold by Magellan Technology. 

According to federal data published in the 2022 National Youth Tobacco Survey, Hyde is among the most commonly used e-cigarette products young people consume.

“In conducting its scientific review, the FDA determined that the applications lacked sufficient evidence demonstrating that these flavored e-cigarettes would provide a benefit to adult users that would be adequate to outweigh the risks to youth,” wrote the agency in an Oct. 6 press release.

The FDA also issued a warning letter to EVO Brands LLC and PVG2, LLC, the makers of the most commonly used e-cigarette brand, Puff Bar, for receiving and delivering e-cigarettes in the U.S. without a marketing authorization order. 

The crackdown on the e-cigarette industry dates back to the Trump administration when former President Donald Trump targeted the flavored products after concerns were raised by first lady Melania Trump, particularly as the mother of a teen son. The move to impose stricter regulation on the industry was also set off by several deaths connected to a mysterious lung disease caused by vaping.

While e-cigarettes do not contain tobacco, they contain nicotine, which the CDC determined is “highly addictive and can harm the developing adolescent brain.” The federal agency determined that use during adolescence could also increase the risk of “future addiction to other drugs.”

Congresswoman Cherfilus-McCormick echoed those concerns, telling theGrio she worries about “the effects that we’ve known for years that nicotine has on the body; from the lungs to being more prone to cancer and just being exposed to so many different illnesses that come with smoking and nicotine addiction.”

Rep. Sheila Cherfilus-McCormick, D-Fla., arrives to Rayburn Building on Wednesday, May 18, 2022. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

But drug policy advocates warn that in the pursuit of cracking down on flavored e-cigarettes, the federal government risks undermining what they say is a major advance in public health. The emergence of e-cigarettes is lauded by advocates as an alternative to combustible cigarettes, which contain tobacco and pose a greater danger to consumers’ health. 

“Governments should do everything possible to basically incentivize, encourage and coerce big tobacco to make the transition from selling cigarettes – combustible nicotine – to selling non-combustible nicotine products because they are so much dramatically less dangerous,” Ethan Nadelmann, the founder and former executive director of the Drug Policy Alliance, told theGrio.

He continued, “If you could snap your fingers and all of the 30 plus million Americans who are smoking cigarettes today – or the billion plus people smoking cigarettes today around the world – were suddenly to switch to Juul and other e-cigarettes, it would represent one of the greatest advances in public health in human history.”

Nadelmann added: “That advance would still be true, even if many young people started vaping without moving on to smoking.”

The drug policy expert also pushed back against arguments that cited the impact of e-cigarettes on the brain development of young people. He called those arguments flawed, and noted the similarities between arguments against marijuana during the war on drugs.

“If you look at the rhetoric and arguments they’re using, they’re almost identical to the rhetoric and arguments that they used with respect to marijuana – that marijuana undermines the adolescent brain, it’s going to lower IQ [or] that marijuana is a stepping stone drug,” explained Nadelmann. “The vast majority of those claims of marijuana were grossly overstated.”

When it comes to the concern of youth addiction, Nadelmann said it’s also important to dig deeper into the data. For example, CDC data states that among youth who currently use e-cigarettes, nearly 30% use them daily.

He says that data is flawed as it doesn’t “distinguish between somebody who’s going to take a couple of hits during the course of the day and somebody who’s taken hundreds of puffs.”

If lawmakers are successful in reducing youth access to flavored disposable e-cigarettes, Congresswoman Cherfilus-McCormick admits there’s a chance manufacturers could likely “figure out another way to create another addictive product for our children.”

However, she made clear, “every time they keep raising up a new product or finding a new loophole, we have to act immediately to close it to protect our families.”

Gerren Keith Gaynor

Gerren Keith Gaynor is the Managing Editor of Politics and White House Correspondent at theGrio. He is based in Washington, D.C.

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