Flavored Vapes: The Partial US Ban Brings Very Mixed Feelings

6 months

It was a cold, rainy morning when I walked into “Happy Habits,” our local vape store in the Hudson Valley. It was the day after the federal government’s January 2 announcement of an effective ban on flavored vape cartridges.

The mood inside matched the weather, despite the brightly-lit JUUL display and many other colorful items. When I asked the friendly employee at the counter how the ban would affect the business, she immediately replied that more people would get sick from smoking. She added that jobs would be lost.

She didn’t have permission for me to interview customers, so I kept my distance while she helped them. The store is just a few blocks from our local high school, where many young people do vape. But they don’t buy here; everyone who came in had to produce their driver license.

The ban itself is a compromise, likely to make few happy. Vapes remain legal, and the Trump administration has pulled back from the total flavors ban it threatened in September. Flavored e-liquids for tank-based devices will still be permitted, as will menthol and tobacco-flavored cartridge-based e-cigarettes.

But as of February 2, manufacturing, distributing or selling e-cigarette flavors that come in cartridges or pods will bring possible enforcement action from the FDA. Businesses could be shut down, and individuals subject to criminal prosecution.

“Some people already told me they’re going back to smoking.”

Alex Azar, secretary of the Department of Health and Human Services (HHS) called vaping “an epidemic of substance use” among youth. Because young people prefer the flavors and the cartridges, those are the targeted products. But as the Happy Habits employee told me, many adults also like those flavors⁠—and relied on them to make the switch.

“Some people already told me they’re going back to smoking,” she said.

The Food and Drug Administration (FDA) seems to not want to call this a ban, hinting at possibilities that vaping products can indeed, someday, be approved as smoking cessation tools, just like gum and patches.

“Coupled with the recently signed legislation increasing the minimum age of sale of tobacco to 21,” said FDA Commissioner Stephen M. Hahn, MD on January 2, “we believe this policy balances the urgency with which we must address the public health threat of youth use of e-cigarette products with the potential role that e-cigarettes may play in helping adult smokers transition completely away from combustible tobacco to a potentially less risky form of nicotine delivery.”

“Potentially less risky” severely undersells the difference between smoking and vaping. The best available evidenceaccording to both the National Academies of Science, Engineering and Medicine and the UK’s Royal College of Physicians—indicates that vaping is vastly safer.

And electronic cigarettes are a substitute for combustible cigarettes. Research has shown them to be more effective as smoking cessation products than patches or gum.

Relief at Dodging a Total Flavor Ban

One outcome of the 2019 spate of state or city-level bans on vapes or flavors is that people whose primary focus has been other substances have begun to take a keen interest. A prominent panel about vaping at the Drug Policy Alliance’s recent Reform conference, featuring DPA founder Ethan Nadelmann, is one example.

Another is Joshua Lee, MD, MSc, a public health researcher who has conducted important trials with opioid use disorder (OUD) medications. He volunteered to me, during a conversation about something else, that bans on vaping constituted the worst news of 2019.

When I told him I was working on this article, he continued enthusiastically. “There is now excellent randomized trial data and wide patient experience using e-cigs to quit smoking,” said Lee, who is associate professor of Population Health and Medicine/General Internal Medicine and Clinical Innovation at the NYU School of Medicine and director of the NYU Fellowship in Addiction Medicine. “Blanket bans on all e-cigs misses the mark and undermines stop-smoking efforts. E-cigs are a clear benefit to adult smokers wanting to quit.”

Lee drew an explicit parallel with his primary area of expertise: buprenorphine and methadone for opioid “maintenance” in treating OUD. “As in Europe and the UK, the US should being making more of this new form of ‘nicotine maintenance,’” he told Filter.

Michael Siegel, MD, MPH, professor of Community Health Sciences at Boston University, has made e-cigarettes a main area of his focus. He sees them as a competitor to combustible cigarettesand indeed that is the role they are playing on the market. “It is certain that if e-cigarettes are banned, if even only flavored e-cigarettes are banned, that will result in hundreds of thousands of ex-smokers returning to smoking,” he told Filter.

“Most importantly, the policy allows vape shops to remain in business, so adults can continue to use the open systems that are so effective in helping people quit.”

“Fortunately, the FDA decided not to implement a total ban on flavored e-cigarettes,” Siegel said of the new plan. “I think that a total ban on flavors would have had devastating public health effects. It would have resulted in many ex-smokers returning to smoking or turning to a black market for flavored e-liquids.

“While [the partial ban] will affect adults who use devices like JUUL, they will still be able to use menthol flavored e-liquids and I suspect that most vapers who use these systems will migrate over to menthol,” Siegel continued. “Most importantly, the policy allows vape shops to remain in business, so adults can continue to use the open systems that are so effective in helping people quit smoking and keeping them off of cigarettes long-term.”

The regulatory situation around vaping has recently been so fluid at different jurisdictional levels that no one can be sure what’s next. But Siegel’s dismay at the public health implications of bans was palpable, even over the phone.

Citing the estimated three million people who have entirely switched from smoking to vaping in the US, he said, “It’s tragic, frankly, to think about these people who are now feeling better, who have better health, who are going to be around longer to see their kids grow upand now, because of this hysteria…” His voice trailed off.

Of course, FDA-approved nicotine replacement therapy in the form of gums and patches should still be available, added Siegel. But he cited many other aspects of addiction to smoking that go beyond the nicotine itself.

“There’s psychological addiction, and the social factor,” he said. “That’s why electronic cigarettes are so effectivethey really address all the other aspects” of the cigarette-smoking they’re meant to replace. These include, for example, the hand-to-mouth action. “Everything about vaping is similar to smoking,” Siegel said, adding that there is also an “identity” to vaping. “Instead of being a smoker, you’re a vaper. You can vape together.”

Banning flavors, then, even just in cartridge form, destroys a part of the vaping identity. To most vapers, the various flavors on offer taste better than tobacco (although the Happy Habits employee told me she likes tobacco flavor, which is just as well considering she’s now going to have to sell a lot more of it).

“The flavors are a huge part of the experience for vapers,” said Siegel, adding that getting away from the tobacco flavor is one of the most appealing aspects of vaping.

Siegel has been in the tobacco control field as an anti-smoking advocate for 30 years. He testified in 11 lawsuits against the tobacco industry, including Engle v. Liggett in 2006.

In this context, how does he feel about younger people who are introduced to nicotine via vaping? “It’s not a good thing, but I don’t think it in any way that this undermines the progress we have made,” said Siegel. “Even as electronic cigarette use has risen among youth, the rates of smoking have continued to decline.”

He would have preferred to have smoking just peter out on its own, with “nothing to replace it,” he admitted. “But kids are under a lot of anxiety, and they’re going to turn to something. What do we want them to turn to?” At least it’s not to combustible cigarettes.

Siegel believes that the FDA “could have regulated this product from the beginning.”

Take away the vaping, and who knows? Young people who are dependent on high-nicotine vaping products, if denied vaping, may well turn to smoking. “Or they’ll turn to the black-market vapes, which are causing the lung deaths,” Siegel pointed out.

Siegel believes that the FDA “could have regulated this product from the beginning” by limiting certain products’ nicotine levels and imposing stricter age controls. “You should have to be 21 to go into a vape shop,” he said. “They shouldn’t sell anything else there.”

Lee is also concerned about teen vaping, and agrees that the FDA should be more proactive. Like teen smoking of combustible tobacco, teen vaping “should be tackled through further restrictions on marketing, sales to minors, and broad education campaigns,” he said. “FDA regulation of both e-cigs and cigarettes would help.”

As such, Lee is supportive of the “balancing act between serving adult smokers and preventing teen nicotine dependence” that he sees in the partial FDA ban.

But by banning vaping or flavored vapes outright at state and other levels, authorities are setting the stage for more smoking and more disease and death, both Lee and Siegel agree.

The Message Smokers Are Hearing

At this point, I’ll make a confession. Before I began delving into this topic recently, I was not convinced that vaping bans were a bad idea. Amid mixed messaging in the field, there appeared to be no consensus on the outcomes of such a move.

But among the specialists who know—the researchers I’ve spoken with, and others whose work I’ve read—there is a consensus.

Many years ago, I smoked and loved it. I quit after about 100 tries over the course of a few years. Lots of us have quit smoking. But many others—predominantly people from low-income backgrounds and others with severe stressors—have not been able to.

Despite being much less harmful than smoking, vaping has potential risks; I’m not going to encourage anyone who doesn’t smoke to start vaping. But if they are switching from smoking, I will applaud them all the way.

She said that she always knew smoking was better because it’s been around so long.

Back in summer 2019, when news had just broken of the fatal lung injuries caused by “vaping,” I stopped at my favorite local supermarket. (Vitamin E acetate found in illicitly manufactured THC oils was the principal culprit, it turned out, and cases are now on the decline.)

One of the workers, a familiar face, stood smoking a cigarette outside the store—not hunched over behind a pillar out of the way as she usually did, but proudly front-and-center.

Noticing this, I asked her if she’d seen the vaping news. She had, and she said that she always knew smoking was better because it’s been around so long. When I queried this, as someone who’s known her for years, she just nodded and waved her cigarette happily.

This is the public health message, even if we don’t arrive at total bans. “We are squandering what could have been an amazing thing,” said Siegel sadly.


Photo of flavored pod products via Vaping360.

Alison Knopf

Alison has written about substance use for more than 30 years. She has also written for many years about medical coding. A freelance writer, she is also the editor of Alcoholism & Drug Abuse Weekly, and managing editor of Child & Adolescent Psychopharmacology Update and Child & Adolescent Behavior Letter—all published by WILEY. She also writes for Addiction Treatment Forum.

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