The FDA is considering prohibiting the sales of some vapes in convenience stores, says FDA Commissioner Scott Gottlieb. The agency might also restrict online sales, as Gottlieb has already threatened, in an effort to stem what Gottlieb regularly calls an “epidemic” of teenage vaping.
“We have a sense of where we’re going to be heading from a policy standpoint,” Gottlieb told CNBC’s Squawk Box program. The FDA has given JUUL and tobacco industry vaping manufacturers a deadline to submit plans to reduce teen use.
“We have a problem with access. These products are too accessible to kids,” said Gottlieb. “And we have a problem with appeal. These products are too appealing to kids right now. And it’s mostly the cartridge-based e-cigarette products. The open-tank products that you might find in a vaping store aren’t generally used by kids.”
That is a reversal from the concerns expressed by the agency in its 2016 Deeming Rule. In creating that document, the FDA carefully plotted a course to cripple and then destroy the open-system vaping market, while encouraging manufacturers to pursue products like pod vapes or cartridge-based systems.
The new partial vape ban would restrict sales in the places smokers are most likely to see (and buy) vaping products: stores that also sell cigarettes.
Gottlieb said that vape shops seem to be doing a better job than c-stores and other tobacco sales channels at verifying ID. “A lot of the sales we’ve seen going to minors are actually happening in the brick-and-mortar stores, the convenience stores,” said the FDA chief.
Gottlieb seemed to indicate that flavored products might be allowed in vape shops if they are “adult-only.” Such a requirement would require rulemaking by the agency, or legislation in Congress. The FDA would have to have an objective standard for which flavors — or flavor descriptors — would be allowed in traditional retail channels. They would also likely face lawsuits from retailers, who would object to an arbitrary rule that prevented only certain stores from selling legal products.
“We’re going to take steps to reduce access to these products among minors, some further steps,” said Gottlieb. “And we’re going to take steps as well to reduce their appeal, and that’s going to mean some restrictions on the flavored products. It’s really the flavored products that are driving the youth use. They’re the most popular products among kids.”
Of course, flavored vaping products are the most popular among adults too. But they have been targeted by tobacco control activists like the Campaign for Tobacco-Free Kids, and bipartisan Senate legislation has been introduced that would essentially ban all flavors except tobacco. That would destroy the independent vaping industry.
An online sales ban would also be an existential threat to the vape industry. Gottlieb was cagey on how the agency would approach internet sales. Federal restrictions on mail-order tobacco sales are currently limited to cigarettes and smokeless tobacco.
“It’s more likely that we’re going to put some restrictions on how they can be sold online if we continue to allow online sales,” said the commissioner. “We’ll have to do that through regulation, but we could potentially ban online sales until those regulations are in place. Most of these products are actually sold through brick-and-mortar stores.”
Host Becky Quick asked Gottlieb about the JUUL Labs inspection that was described in multiple news outlets as a raid, and she also used that word herself several times. She suggested that the FDA must have had suspicions that JUUL was concealing incriminating information about its marketing.
“Well, it’s not that unusual for us to conduct inspections and gather documents around manufacturing and marketing practices,” Gottlieb explained. He said that he has met recently with JUUL, and also with Altria and RJ Reynolds (now a division of British American Tobacco).
“We’ve had good discussions,” Gottlieb told the host. “They’ve put some good ideas on the table.”