WASHINGTON — Senators on Wednesday criticized top health and law enforcement officials for not doing more to combat the disease’s rise illegal electronic cigarettes in the US, a multi-billion dollar business that thrives amid haphazard enforcement.
Democrats and Republicans on the Senate Judiciary Committee expressed exasperation and frustration as they questioned officials from the Food and Drug Administration and the Justice Department about efforts to stay on top of the vaping industry, which has grown to include thousands of flavored, unauthorized e-cigarettes from China.
These products, including brands like Elf Bar, have become the most popular choice among underage teens who vape.
“I simply do not understand how the FDA and DOJ allowed thousands of products to remain on store shelves when their manufacturers had not received approval, or in some cases even applied,” said Judiciary Chairman Dick Durbin.
The Illinois Democrat showed a photo of brightly colored e-cigarettes, including ones in dragon fruit and watermelon gum flavors, that he said were taken by an employee from a vape shop near the FDA’s Maryland campus.
“These illegal products, clearly designed for children because of their taste, are sold in the shadow of the FDA building, less than a mile from the headquarters,” Durbin said. “How can that happen?”
Brian King, the FDA’s tobacco chief, said the agency has been delayed by millions of applications submitted by vape companies seeking approval, which regulators are legally required to review.
“The sheer size of this product landscape requires that we take the time to conduct scientifically and legally defensible assessments of its 27 million applications,” King said.
The FDA has approved a handful of e-cigarettes – including Vuse – as an alternative for adult smokers. All other products on the market, including major sellers like Juul, are pending review or are considered illegal by regulators.
The FDA and DOJ have legally banned about half a dozen vape companies from selling their products in the U.S., but many more manufacturers are launching new products, mainly disposable, non-refillable vapes that thrown in the trash.
On Monday, the FDA and DOJ made a new government task force, which will include the US Postal Service and other agencies, to try to address the problem. That step was recommended in 2022 by a outer panel that assessed long-term complaints about the FDA’s tobacco program.
Republican Senator Thom Tillis called the timing of the announcement “a political stunt” and criticized the absence of other federal agencies from the initiative, including Customs and Border Protection.
“If the timing of the task force’s formation wasn’t evidence of how unserious the FDA is in addressing the flood of illegal e-cigarettes, the FDA’s exclusion of CBP from the task force makes it crystal clear,” Tillis said, representing North Carolina. , the country’s largest tobacco producer. He urged officials to focus enforcement on brands from China, rather than major domestic manufacturers such as Reynolds American, the tobacco giant that makes Vuse.
Industry analysts estimate that disposable vapes make up 30% to 40% of the approximately $7 billion vaping market. The two best-selling disposables: Breeze and Elven bar – generated more than $500 million in sales last year, according to Nielsen retail sales data analyzed by Goldman Sachs.
Both brands have been approved by FDA regulators but remain widely available, in some cases with new names, logos and flavors. More than half of the 2.8 million U.S. teens and adolescents who vaped last year said they used Elf Bar.
King noted that products like Elf Bar cannot be legally sold in China because the government there has banned non-tobacco flavored e-cigarettes.
“You can’t sell them in China, but you can sell them in the United States?” Senator John Cornyn of Texas responded. The Texas Republican vowed to introduce legislation that would address what he called “an outrageous and unacceptable status quo.”
Former FDA officials have long blamed bureaucratic wrangling between their agency and law enforcement agencies for the slow pace of legal action.
The FDA can conduct investigations and recommend cases, but only the Justice Department can file lawsuits. Federal prosecutors may decline to pursue cases for a variety of reasons, including competing priorities, limited resources, perceived weaknesses in the case, or the potential impact of a loss in court.
Using its own authorities, the FDA has sent hundreds of warning letters to vape shops and e-cigarette manufacturers in recent years, urging them to remove or discontinue their products. But the letters have done little to deter companies from selling new products.
Wednesday’s hearing is the first full committee hearing to examine the vaping market since 2019, when lawmakers focused on Juul, the U.S. company widely blamed for fueling the underage vaping trend.
Under pressure from Congress and the FDA, Juul and other domestic manufacturers discontinued their flavored products and marketing campaigns in late 2019.
Overall, vaping among teens is down 60% from an all-time high in 2019, due to the COVID-19 pandemic and new age restrictions and flavor bans on e-cigarettes and other tobacco products.
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