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The Flavor Battle and Vaping

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There are many sides to the flavor battle that wages on. Some say flavoring is unnecessary, markets to minors and appeal to children. Others say flavors are absolutely essential to harm reduction efforts, and if taken away millions more will die. We’re obviously on the latter side, and we’re here to educate our loyal readers on how absolutely close we could be to losing flavors in our e-liquids.

Our friends at Keller and Heckman reported late last year in their Continuum of Risk law blog that the FDA wanted to limit access to flavored electronic nicotine delivery systems (ENDS) by “enhancing online age verification and banning menthol in cigarettes and flavored cigars.” While we absolutely agree that nothing should be in the hands of minors, some of the FDA’s statement verbiage was vague and misguided, especially where various vaping products have “appealing fruit and candy flavors.” Yes, they are, and they are keeping millions of adults from dying.

FDA then announced its new policy framework to “combat rising youth use of tobacco products, including ENDS.” However, this seems more promising in that sales of flavored ENDS other than tobacco, mint and menthol would be limited to adults-only retailers. The new policy would apply to e-liquids, cartridge-based systems and cigalikes. ENDS products sold in places not adults-only would have the restriction of tobacco, mint and menthol. Other flavors would be subject to the FDA’s new compliance policy. Keller and Heckman noted that the FDA’s approach may be subject to legal challenge: Section 906(d)(3) of the Tobacco Control Act expressly states that “no restrictions under [906(d)(1)] may — (i) prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets.”

Age Verification and STAKE

Age verification crackdown was also a part of the FDA’s announcement, which said new best practices for online businesses were coming in the future. California’s Stop Tobacco Access to Kids Enforcement Act (STAKE) may provide a benchmark for the plan, which incorporates Tobacco 21.

While we’re anxiously awaiting for the FDA’s flavor plans, a bevy of jurisdictions are starting to prohibit flavors on their own. As always, if you want flavors to continue to be available for adults, keep a watch on what’s happening in your neck of the woods. Here’s two examples of what we’re keeping a watchful eye on:

  1. California. The state has some of the strictest vaping laws in the nation, and six legislators are trying to ban all flavored e-cigarettes in retail stores and vending machines, reports Press-Telegram. The Bay Area and Sacramento have been fighting their own battles as well. The news site reports that the FDA acknowledges that “the vast majority of adult smokers trying to quit by switching to e-cigarettes use fruit, sweet and dessert flavors,” and “a growing body of studies and surveys shows adult vapers prefer these flavors and they are a vital part of adults’ efforts to quit smoking traditional cigarettes.” The article from the Press-Telegram also includes some great arguments for keeping flavors while also making both sides happy.
  2. Baltimore, MD. CBS Baltimore reports that officials are looking at legislation that would ban the sale of flavored e-liquids. Gregory Conley, president of the American Vaping Association, told the Baltimore Sun: “Passage of this ordinance will constitute a giant gift to Big Tobacco, which will be able to continue to sell deadly menthol cigarettes, all while not facing competition from smoke-free products that have been estimated by international experts as being at least 95 percent less hazardous than smoking. According to the [Centers for Disease Control], vaping products are the most popular quit smoking tool on the U.S. market. Shutting down small businesses that are dedicated to helping smokers switch will lead to more smoking and more death."