In a heated session on June 12, U.S. Senators lambasted top health and law enforcement officials for their perceived inability to curb the surging illicit e-cigarette market. The Senate Judiciary Committee's hearing, as reported by the Associated Press, brought officials from the Food and Drug Administration (FDA) and the Department of Justice (DOJ) to the forefront of scrutiny over their regulatory efforts. 

The Scope of the Problem 

The discussion highlighted a significant problem: the rapid expansion of the illicit e-cigarette market.  

While the focus of this hearing was solely on youth use, what these Senators seemed to ignore is the fact that adults are turning away from cigarettes and are using flavored vaping products to stay off deadly combustibles. Cigarette smoking causes more than 480,000 deaths each year in the United States. This is nearly one in five deaths per CDC data.  

Senatorial Criticisms 

Senator Dick Durbin, chairman of the Senate Judiciary Committee, voiced his frustration: 

"I simply do not understand how FDA and DOJ have permitted thousands of products to remain on store shelves when their manufacturers have not received authorization, or, in some cases, even filed an application." Durbin can take solace in the fact that vape flavor bans have increased cigarette sales in states with stricter vape laws.  

FDA's Response and Challenges 

Brian King, director of the FDA Center for Tobacco Products, explained that the agency is overwhelmed by a backlog of millions of premarket tobacco product applications (PMTAs). Each application demands a comprehensive scientific review, which has significantly slowed the approval process. 

Industry Perspective 

An industry lobbyist highlighted the resulting market chaos, attributing it to the FDA’s rejection of over 99% of submitted applications. This has created what the lobbyist termed an "untenable marketplace," where legal uncertainties abound for many vape companies. 

Vapor Technology Association Executive Director, Tony Abboud testified in front of the Senate Judiciary Committee, educating lawmakers and their staff on the critical importance of e-cigarettes as a harm reduction and smoking cessation tool. He also called out the hypocrisy at both the FDA and CTP.  

Formation of a Task Force 

Ahead of the hearing, the FDA and DOJ announced the creation of a task force aimed at better coordinating efforts against illegal e-cigarettes. However, Republican Senator Thom Tillis criticized the timing and composition of this task force, calling it a “political stunt” and lamenting the exclusion of key agencies such as Customs and Border Protection (CBP). 

"If the timing of the task force formation wasn’t evidence of how unserious the FDA is about tackling the flood of illicit e-cigarettes, FDA’s exclusion of CBP from the task force makes it crystal clear," Tillis remarked. He urged a focus on Chinese brands rather than domestic manufacturers like Reynolds American, based in his home state of North Carolina. 

The Impact of Prohibition 

It's important to note that the crackdown on flavored e-cigarettes and stringent regulations have inadvertently fueled the illicit market. The prohibition has created a vacuum, allowing unregulated products to flood in and meet the demand. This situation is compounded by the fact that youth vaping has decreased by 60% over recent years, suggesting that while legal measures like T21 have been effective in reducing underage use, they have also pushed the market underground for adults. 

The Senate Judiciary Committee's hearing underscores the complexity and urgency of regulating the burgeoning e-cigarette market. While the FDA and DOJ face formidable challenges in their regulatory roles, it’s clear that prohibition and overly stringent measures have fueled an illicit market. As legislative and enforcement efforts continue, a balanced approach that considers both regulation and market realities will be crucial for the future of the e-cigarette market.