FDA Proposal Banning Sales of Flavored E-Cigarettes in Convenience Stores is Flawed

In March, the Food and Drug Administration (FDA) issued draft guidance that would effectively ban flavored e-cigarette sales in convenience stores. Under the draft guidance, stores would continue to be able to sell tobacco, mint and menthol flavored e-cigarette products but would not be able sell other flavored products unless minors are prohibited from entering the stores or those products are sold in a separate section of the store that minors are prohibited from accessing. At the same time, however, vape shops and online retailers would continue to be allowed to sell these products.

Although the FDA’s actions are aimed at reducing teen vaping, its policies, if implemented, could actually lead to an increase in teen vaping and are counterproductive. Henry Armour, CEO of the National Association of Convenience Stores (NACS), recently argued in an op-ed for CNBC that the studies the FDA cites in its own policy proposal do not back up the agency’s claims that their actions would reduce teen vaping. Click here to view the article.

Armour examines statistics from studies cited in the FDA’s own policy proposal related to the sale of e-cigarettes to minors. For instance, an August 2018 study cited by the FDA found that more than half of minors that obtain e-cigarettes receive them from people over the legal age to purchase the products, also known as “social sources.” The study showed that only 31 percent of minors who obtained e-cigarettes bought them in a retail sale. Interestingly, nearly 70 percent of e-cigarettes purchased by minors in a retail sale were purchased from either a vape shop, tobacco store or online. Oddly, under the FDA’s proposed policies, these are the only outlets that will be permitted by the FDA to sell flavored e-cigarette products. In fact, the same study found that only 5.6 percent of e-cigarette purchases by minors were made at convenience stores. As Armour states in his article, “vape and tobacco stores sell about 20 times as many e-cigarettes to minors as convenience stores — even though convenience stores outnumber them by 15 to 1.”

PMAA has been working closely with NACS and other groups on this issue and has been urging the FDA to withdraw its current proposal. PMAA supports FDA’s efforts to curb teen vaping but the current policy proposal will not work and will likely lead to an increase in e-cigarette use by minors. In May, PMAA submitted comments on FDA’s draft guidance. Click here to read the comments.

PMAA is also advocating for a bill that was recently introduced by Sens. John Cornyn (R-TX), Diane Feinstein (D-CA) and Chris Van Hollen (D-MD) known as the “Preventing Online Sales of E-Cigarettes to Children Act” (S. 1253). The bill would prohibit online sales of e-cigarettes to minors by applying the same safeguards already in place for regular cigarettes and smokeless tobacco products. The bill amends the “Prevent All Cigarette Trafficking Act (PACT Act)” to also include e-cigarettes in the definition that already includes traditional cigarettes.

Specifically, the bill would require online retailers of e-cigarettes to:

• Verify the age of customers for all purchases.
• Require an adult with ID to be present for delivery.
• Label shipping packages to show they contain tobacco products.
• Comply with all state and local tobacco tax requirements.