Trump Administration Announces Flavor Ban

Health and Human Services Secretary Alex Azar announced today that the FDA will ban flavored vaping products. The move came after a White House meeting between President Trump, Azar, and FDA Acting Commissioner Ned Sharpless. Trump spoke to reporters about the decision.

“Not only is it a problem overall, but really specifically with respect for children,” Trump told reporters at the White House after the meeting. “People are dying with vaping,” he said.

Trump’s wife, First Lady Melania Trump, has tweeted in recent days about the “growing epidemic” of youth vaping. Trump in his remarks to reporters seemed to indicate that her involvement pushed him to take the extraordinary step of instituting a flavored vape ban.

“The Trump Administration has demonstrated a deep commitment to preventing youth from using all tobacco products, including e-cigarettes, and the finalization of the compliance policy will be an important step in ongoing work to ensure e-cigarettes are not marketed to, sold to, or used by kids,” said the HHS press release.

Trump’s administration has relaxed regulations on many industries, and even given important jobs to former lobbyists, but it has steadfastly refused to back off on vaping regulations.

“The Trump Administration is making it clear that we intend to clear the market of flavored e-cigarettes to reverse the deeply concerning epidemic of youth e-cigarette use that is impacting children, families, schools and communities,” Sec. Azar said. “We will not stand idly by as these products become an on-ramp to combustible cigarettes or nicotine addiction for a generation of youth.”

Azar said that the decision was made after reviewing preliminary data from the National Youth Tobacco Survey that show “more than a quarter of high school students were current (past 30 day) e-cigarette users in 2019.” The survey last year showed that 20.8 percent of students had used a vape at least once in the past 30 days. “More than a quarter” could mean an increase of fewer than five percentage points.

“We must act swiftly against flavored e-cigarette products that are especially attractive to children,” said FDA Acting Commissioner Sharpless. “Moreover, if we see a migration to tobacco-flavored products by kids, we will take additional steps to address youth use of these products.”

The FDA asked for public comment on vape flavors in an advanced notice of proposed rulemaking in March 2018. The agency had previously announced its intention to restrict flavors to adult-only retail venues, but Azar’s announcement today appears to be more inclusive.

Survey data show that adult users of vaping products overwhelmingly prefer fruit, dessert and candy flavors to tobacco-flavored vapes. There is no specific data on adolescent preferences, just survey questions that ask if flavors are one reason they choose to vape.

There are no current vaping products that have submitted a premarket tobacco application (PMTA) for FDA marketing approval. All products currently on the market are there by FDA’s enforcement discretion, which can be reversed at any time. According to Azar’s press release, “The compliance policy the FDA anticipates announcing in the coming weeks will outline enforcement policy addressing non-tobacco-flavored e-cigarette products that lack premarket authorization moving forward.”

“Any attempt at a flavor ban will almost certainly have to go through the normal rulemaking process at FDA, meaning that millions of vapers will have the chance to make their voices heard during an open public comment process,” the American Vaping Association said in a statement. “There is no need for vapers to panic and believe that a flavor ban could go into effect this month.”

“In the history of the United States, prohibition has never worked,” says AVA president Gregory Conley. “It didn’t work with alcohol. It hasn’t worked with marijuana. It won’t work with e-cigarettes. The President should meet with just one of the millions of American voters who have used flavors to quit smoking before moving forward on this draconian approach to regulation and public policy.”

An immediate ban would cause a rush to stockpile nicotine and supplies for DIY e-liquid-making, and force vapers to either produce their own flavored products or buy them on an illegal market. The FDA has never shown any concern that a black market will develop, but it is a foolish expectation that millions of people who use flavored e-liquid will simply stop because the federal government says they must.

Meanwhile, states and municipalities are taking actions now. Michigan Gov. Gretchen Whitmer announced a ban on flavored vaping products (except tobacco) last week. There is a public hearing Thursday at the state capitol to discuss the Michigan flavor ban, which could go into effect within weeks.

Yesterday, billionaire former New York City mayor Michael Bloomberg announced he would spend $160 million on a national push by tobacco control organizations to ban flavored vaping products. Bloomberg Philanthropies will fund the program over a three-year period, and it will be administered by Campaign for Tobacco-Free Kids.