By: Nicola Peters

Tobacco use among youth is not a new concept.[i] However, today's youth are swapping Marlboro Reds for Juul pods and lighters for USB chargers.[ii] Vaping has become so popular with teens that it has been dubbed a health epidemic.[iii] In a push to deal with this problem, the Food and Drug Administration (FDA) is slated to decide by September 9th, 2021, whether to ban or limit the sale of flavored e-cigarettes entirely.[iv] The FDA previously limited sales to only fruit and mint-flavored vape products.[v] These regulations are highly contentious, with those against the ban arguing that vaping provides a healthier alternative to smoking, contributing to public health.[vi] On the other side, parents, schools, and even youth themselves who are seeing the spike in teen vaping firsthand are blaming the large conglomerates, claiming the harmful vape companies intentionally market to young consumers.[vii] Both camps are bringing their arguments in courts in attempts to influence the availability of e-cigarettes.[viii]

Those within the vaping industry, including Juul partly owned by tobacco stalwart Altria contest the FDA’s power to regulate the products among other claims of their inappropriate marketing and public health benefits.[ix] In 2009, Congress gave the FDA authority to regulate any new “tobacco-derived” products.[x] In 2016, the FDA limited the largely unregulated e-cigarettes in the same way as other tobacco products; no sales to minors, no advertising the products as safer than smoking or as a smoking cessation device.[xi] The Supreme Court declined to hear a challenge brought by a Mississippi vape store called Big Time Vapes, Inc. and the United States Vaping Association.[xii] They claimed that the 2009 Tobacco Control Act which empowered the FDA to regulate the industry was unconstitutional because its broad discretion violates the principle that Congress cannot delegate legislative authority without specific supervision.[xiii] These pro-vaping advocates staunchly assert vaping is a public health benefit for providing a smoking alternative and that their practices do not target minors purposefully.[xiv]

Conversely, others advocate the importance of stricter FDA regulations in fighting the youth vaping epidemic.[xv] In 2019, the North Carolina attorney general filed suit against vaping titan Juul alleging its marketing targeted minors.[xvi] The suit ended in a $40 million settlement set to be paid to the state to fund programs for quitting and preventing addiction to e-cigarettes.[xvii] North Carolina was the first state to file suit.[xviii] However, now Juul is embroiled with multidistrict litigation brought by school districts, Native tribes, and municipal governments claiming the marketing to specific groups was purposeful.[xix] In new survey data, about two-thirds of Americans agree that there should be tighter e-cigarette regulations.[xx] More than a third of Kentucky’s middle and high school students responded to a survey indicating they believe the pandemic has increased their peers’ e-cigarette use.[xxi] However, with over 70 percent of surveyed Kentucky youth in favor of local tobacco control, Senator Julie Raque Adams and Representative Kim Moser filed bills during the recent legislative session to take back control over tobacco laws for local Kentucky communities.[xxii]

Ultimately the decision comes down to whether vape pens have public health benefits. The Covid-19 pandemic that ravaged American’s respiratory health is at the forefront of all decision-making, making it more imperative than ever for the FDA to expeditiously regulate e-cigarettes to protect America’s youth from facing health issues for years to come.[xxiii]

[i] See Prevening Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General, Nat’l. Ctr. for Chronic Disease Prevention & Health Promotion (US) Office on Smoking and Health (2012), https://www.ncbi.nlm.nih.gov/books/NBK99240/ (last viewed Aug. 15, 2020) [https://perma.cc/7HAK-JFNS].

[ii] Jan Hoffman, Marijuana and Vaping are More Popular Than Cigarettes Among Teenagers, New York Times (Dec. 14, 2017), https://www.nytimes.com/2017/12/14/health/teen-drug-smoking.html [https://perma.cc/YMR8-HKP7].

[iii] Youth E-Cigarette use Declared an Epidemic, Am. Nonsmokers’ Rts. Found. (Dec. 18, 2018), https://no-smoke.org/youth-e-cigarette-use-declared-an-epidemic/ [https://perma.cc/S92D-YF7A].

[iv] Virginia Langmaid, FDA Chief Stays Mum on Plans for Banning Flavored Vapes, Cable News Network (June 23, 2021), https://www.cnn.com/2021/06/23/health/house-vaping-fda-hearing/index.html [https://perma.cc/9F8J-6X22].

[v] FDA finalizes enforcement policy on unauthorized flavored cartride-based e-cigarettes that appeal to children, including fruit and mint, U.S. Food & Drug Administration (Jan. 02, 2020), https://www.fda.gov/news-events/press-announcements/fda-finalizes-enforcement-policy-unauthorized-flavored-cartridge-based-e-cigarettes-appeal-children [https://perma.cc/KG5R-TYVV].

[vi] Michael Hoseph Blaha, 5 Vaping Facts You Need to Know, Johns Hopkins Med. https://www.hopkinsmedicine.org/health/wellness-and-prevention/5-truths-you-need-to-know-about-vaping (last viewed Aug.4, 2019) [https://perma.cc/6ASA-TFVF].

[vii] Julia Belluz, The Vape Company Juul Said it Doesn’t Target Teens. It Early ads Tell a Different Story, VOX (Jan. 25, 2019 9:10 AM), https://www.vox.com/2019/1/25/18194953/vape-juul-e-cigarette-marketing [https://perma.cc/H4ME-ZZXS].

[viii] See Brendan Pierson, Factbox: U.S. Lawsuits Take aim at Vamping, Reuters (Sep. 25, 2019 12:07 PM), https://www.reuters.com/article/us-health-vaping-lawsuit-factbox/factbox-u-s-lawsuits-take-aim-at-vaping-idUSKBN1WA250 [https://perma.cc/EFJ9-5CJW].

[ix] Id., Renata Geraldo, Altria Cuts Juul Caluation to Below $5 Billion, Wall Street J. (Oct. 30, 2020 10:15 AM), https://www.wsj.com/articles/altria-cuts-juul-valuation-to-below-5-billion-11604067336 [https://perma.cc/FZV5-9LQV].

[x] Maria McCullough, In a Fight for Survival, Juul Funds Pro-Vaping Studies Then Pays a Scholarly Journal to Showcase Them, Phila. Inquirer (July 10, 2021), https://www.inquirer.com/health/juul-pro-vaping-research-seeks-to-influence-fda-regulation-e-cigarettes-20210710.html. [https://perma.cc/JYU7-FF4G].

[xi] Id.

[xii] Ryan Bort, FDA to Keep Regulating Vaping Products After Supreme Court Rejects Industry Challenge, RollingStone (June 7, 2021), https://www.rollingstone.com/politics/politics-news/supreme-court-rejects-appeal-fda-e-cigarette-regulation-1179492/ [https://perma.cc/3Z5Q-A27Z].

[xiii] Id.

[xiv] See Supra vi.

[xv] See Supra vii.

[xvi] Emily Field, Juul Reaches $40M Deal with NC Over Teen Vape Marketing, Law360, (June 28, 2021), https://www.law360.com/articles/1398251/juul-reaches-40m-deal-with-nc-over-teen-vape-marketing?copied=1 [https://perma.cc/4PKH-TABY].

[xvii] See id.

[xviii] Id.

[xix] Id.

[xx] Katherine Schaeffer, Before Recent Outbreak, Vaping Was on the Rise in U.S., Especially Among Young People, Pew Res.Ctr. (Sept. 26, 2019), https://www.pewresearch.org/fact-tank/2019/09/26/vaping-survey-data-roundup/ [https://perma.cc/76UW-JEBX].

[xxi]Kentucky Students Say Pandemic Led to Increased Vaping and Other Tobacco Use Among Peers, Found. for a Healthy Ky. (Jan. 27, 2021), https://www.healthy-ky.org/newsroom/news-releases/article/493/kentucky-students-say-pandemic-led-to-increased-vaping-and-other-tobacco-use-among-peers. [https://perma.cc/Z7EN-FKJ7].

[xxii] Id.

[xxiii] Panagis Gailatsatos, Covid-19 Lung Damage, Johns Hopkins Med. https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs (last visited Aug. 5, 2021) [https://perma.cc/RD7R-MW5A].