33 attorneys general tell FDA to ban flavored vapes

PIERRE, S.D. — 33 attorneys general are aiming their sights on disposable e-cigarettes as the next major threat to the health of children and youth.

South Dakota Attorney General Marty Jackley signed a bi-partisan letter with 32 other Attorneys General on August 29 to request the FDA create guidelines to protect young people from getting addicted to nicotine through e-cigarettes.

In the letter, the attorneys general sited an Associated Press report that more than 5,800 unique disposable nicotine products are being sold in numerous flavors and formulations across the country, representing a 1500% increase from early 2020.

They also sited a CDC report that showed more than 14% of high school students and 3% of middle school students reported current Electronic Nicotine Delivery Systems, or ENDS, use. The report found that over 2.2 million of these students used fruit, candy or dessert flavored ENDS, and nearly 1.4 million used disposable nicotine delivery products.

To address this meteoric rise in vaping, the AGs asked the FDA to address four key issues regarding the e-cigarette industry:

1. FDA should restrict marketing that attracts youth.

The AGs claimed that e-cigarette manufacturers have used social media and influencer marketing to entice teenagers to purchase and use their products, and they requested the FDA adopt regulations to ensure marketing materials are not attractive to youth, and that youth are not bombarded with messages encourage them to use ENDS.

To do that, the AGs said the FDA would need to closely monitor the digital marketing landscape, including social media platforms like Snapchat, TikTok, Instagram and Facebook, for tobacco marketing messages which, when delivered via social media, could appear to come from peers rather than from the manufacturer itself.

2. . The FDA should prohibit all non-tobacco flavors in ENDS products.

E-cigarette manufacturers are marketing sweet, candy-like flavors to consumers, and that is contributing to drawing younger consumers to the products.

"Last year, almost 85% of youth ENDS users reported using a flavored product," the letter read.

Ergo, the AGs are calling on the FDA to ban all non-tobacco flavored nicotine distribution systems.

3. The FDA should regulate the concentration and quantity of addictive nicotine in ENDS products.

"In the last five years, we have witnessed a 'nicotine arms race' in ENDS products," the letter reads.

Many brands of e-cigarettes promise hundreds or thousands of puffs in a single device, and with many e-cigarette brands containing more than 5% of nicotine concentration, that is delivering a higher quantity of nicotine to the consumers lungs than even combustible cigarettes.

Citing regulations passed in Canada, the AGs recommended the FDA require a limit on nicotine concentration in cartridges and disposables to 20mg/ml.

4. The FDA must close the "disposables loophole."

This means the FDA should expand regulatory targeting to not just cartridge-based products, such as JUUL, but also disposable flavored vapes like Puff Bars, Elf Bars and Switch Mods.

"The Enforcement Priorities [of the FDA] entirely omitted disposable flavored products, noting that — at the time — they were less popular among youth than cartridge-based products," the letter read. "This is no longer the case."

The AGs cited another CDC report that found that in 2022 more than half of youth ENDS users reported using disposable e-cigarette products, while only a quarter reported using pod or cartridge-based products.

The last time Jackley called for increased regulation on the sale of e-cigarettes to children was in 2013. He and 41 other attorneys general called for the FDA, state legislature and local governments to address the growing popularity of e-cigarettes.

Since then, parents have taken to testifying in Congress to the increased potency and proliferation of e-cigarette use in children and youth , and while Congress has approved a raise in age for e-cigarette sales to 21, regulations on the products still appear to be slow going .