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November 8, 2019

Flavor Ban Watch: Waiting is the Hardest Part

For the last week rumors have swirled around Washington that the Trump administration would very soon make good on President Trump’s promise to ban flavored vaping products. Every day there have been signs that a policy announcement was imminent, but it never arrived. Now it appears we’ll wait at least till next week.

Monday night and during the early hours of Tuesday morning, vaping consumer and industry organizations received notifications that their upcoming meetings with the White House Office of Management and Budget—meetings to discuss the proposed FDA flavor rule—were cancelled. The emails noted that the rule was “no longer under review.”

That seemed to be proof that the administration had made a decision about the policy, and would announce it soon. It also meant that the decision, whatever it was, would be made with no input from vapers and the small businesses that serve them

“It feels like a slap in the face,” American Vaping Association president Gregory Conley told Bloomberg. “You had a lot of store owners and manufacturers from across the country that requested meetings, and booked flights and hotels, only to get an email at 2 o’clock in the morning.”

The final scheduled meeting that OMB held before cancelling all the rest, on Monday afternoon, was with the anti-vaping group Truth Initiative. Also present were representatives from the Campaign for Tobacco-Free Kids, American Academy of Pediatrics, the American Cancer Society Cancer Action Network, American Heart Association, and American Lung Association—all of the organizations that had sued the FDA to force a sped-up PMTA deadline.

These groups were given the final word before OMB staff sent the guidance back to FDA with final changes from the White House. And while the adults spoke with OMB, a group of Tobacco-Free Kids “youth advocates” and representatives from Parents Against Vaping e-cigarettes (PAVe) delivered a petition with 110,000 signatures, supporting a flavor ban. (That’s not a very impressive number, by the way, considering the time they spent hyping the petition, and the number of signatures that must have come from paid tobacco control employees.)

Tuesday the FDA watched as vapers buzzed angrily across social media, and the agency fed the community’s fear by hyping a new FDA/CDC study of unpublished 2019 National Youth Tobacco Survey data that concluded, “In 2019, the prevalence of self-reported e-cigarette use was high among high school and middle school students, with many current e-cigarette users reporting frequent use and most of the exclusive e-cigarette users reporting use of flavored e-cigarettes.” Also published was a “research letter” by a group of gateway specialists purporting to prove that mint is the JUUL flavor driving the youth epidemic.

The FDA was lining up its justifications for a flavor ban. Vapers waited for the hammer to drop all day, but it never did. Then, on Wednesday morning, White House adviser Kellyanne Conway spoke to reporters, saying all kinds of bizarre and incorrect things about the coming announcement. “E-cigarettes are just that: cigarettes,” she said. Huh?

“This is a burgeoning health crisis; the difference is between kids and adults,” Conway said. “So HHS and FDA have jurisdiction over cigarettes and e-cigarettes under the Tobacco Control Act. They do not have jurisdiction over vaping and vape shops, for example. So, if we’re talking about e-cigarettes, the president, yes, he’s been discussing this with his team and he will, or HHS, will make an announcement soon.”

Conway seems to have confused vaping and vape shops with “vaping cannabis and cannabis dispensaries,” because nothing else seems to explain the remarks. But some mainstream news outlets reported Conway’s words as if she had said that vape shops (and presumably open-system vape products) would be exempted from the coming FDA rules.

The idea of regulating products sold in age-restricted locations differently than those sold in general retail outlets like c-stores isn’t new. Former FDA commissioner Scott Gottlieb has tweeted about it, for example (although he didn’t take steps to enact such rules when he had the chance). There is some question whether it would be legal under the Tobacco Control Act, but the administration may be able to make it work—if it really wants to.

Thursday rumors were flying. In the afternoon, staff in one congressional office told vaping advocates that the FDA announcement would come momentarily. Then JUUL Labs announced it would removing mint JUUL pods—the most popular flavor—from the market. The company, now dismissed as any kind of ally by most of the independent vaping industry, said it agreed with the FDA that “we must reset the vapor category in the U.S.”

Vapers had kept up the pressure all week, calling the White House and tweeting at the President, campaign manager Brad Parscale, and Melania Trump and Kellyanne Conway, who are thought to be the real leaders behind the White House move to ban flavors. The hashtag #WeVapeWeVote was everywhere on Twitter.

Vaping consumers have been activated. Twitter is so overwhelmed with “new” vapers that we’ve actually been called bots. But while vaping was born on the internet, vapers are taking to the streets too. The rally this Saturday in Washington will be a milestone moment in vaping: the first mass demonstration of vaper anger and resolve. Thousands of vapers are expected to stand up and protest the ban directly across from the White House.

On Tuesday, photographer and vaping advocate Jon Luvelli had asked vapers on Twitter to post 15-second videos opposing the flavor ban using the hashtag #15sec4vape, and by the end of the week the movement was taking off. Short videos by vapers across the country were posted and shared, and any questions about vapers being bots were put to rest. Hopefully, vapers who are unable to get to Washington tomorrow will continue letting the White House know where they stand.

Friday morning, President Trump spoke with reporters in front of the White House, and questions were asked about the vaping rules.

“We’re going to be coming out with a very important position on vaping,” said Trump. “We have to take care of our kids, most importantly, so we’re going to have an age limit of 21, or so. But we’ll be coming out with something next week very important on vaping.

“We have a lot of people to look at, including jobs, frankly, because you know it’s become a pretty big industry,” he added. “But we’re going to take care of…now there’s also…when you mention vaping you’re talking about e-cigarettes, you’re talking about a lot of different things. But we’re coming out with a big paper next week.”

A national minimum purchase age of 21 would require a bill in Congress—which could also be loaded with other restrictions. The trick is allowing one anti-vaping component into a bill without others pouring in behind it.

A lot of vaping industry people took the reference to jobs to mean that the independent industry, including vape shops, would be spared from the flavor limitations. It’s too soon to say that (for all we know he’s talking about saving jobs at JUUL), but what Trump said is better than anything he’s said before. Vapers have some hope.

But no one should become complacent. Tomorrow hopefully thousands of vapers will give the White House a taste of what the administration can look forward to if it doesn’t restrain the FDA from a full flavor ban. And everyone who isn’t going needs to work twice as hard to keep the pressure on.

Call the White House at 202-456-1111 or 202-456-1414

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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Ed B
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Ed B

I don’t know Jim…. I’ve got 30 bottles of ejuice just in case..I have never once even got remotely sick from vaping….in fact I feel 1000% better than cigarettes.My family is prone to chronic sinus infections but with vaping I get far few infections.. Personal question to you..Can vaping cause my blood pressure to rise.Went to my family Dr for regular check-up and blood pressure was 160/85.. Rechecked 10 mins later was 112/86.I vape 12mg nic.

Ed B
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Ed B

Told you Trump would back off the flavor ban.I don’t like him but he has a lot more common sense than people give him credit for.He knew he would stand an iffy chance of being reelected if he signed off on a flavor ban

Mark
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Mark

Hi Jim, I’m curious about something. My daughter just picked up a caramel/tobacco flavored juice. She said the salesperson at her vape shop told her that they could still sell that e-liquid because technically it’s a tobacco flavor. Both of the shops I used to go to are now closed due to the state flavor ban our idiot governor, Jay Insley rushed into effect without even considering the effect it would have on small to mid-size vape shops, their employees, and the vapers across Washington state. But back on topic, my shops are both closed so I’ve had no way… Read more »

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