Nicotine vaping products are increasingly being pushed underground in two contrasting jurisdictions, as my recent research illustrates. This sends a damaging message about important harm reduction tools, and threatens consumer safety.
The United Kingdom has, up to this point, regulated vaping products to ensure they are safe, taxing them at a fairly low rate to help nudge people from smoking to vaping. The United States, on the other hand, has failed to authorize most vaping products, which has led to illicit markets and confusion for retailers and consumers.
My research looks at the consequences of both US and UK authorities making bad decisions, however. The US is increasing enforcement of its bad existing policy, whereas the UK is changing course by banning disposable vapes and other popular products.
The US Food and Drug Administration (FDA) has authorized a small number of vaping products for sale, in only one flavor other than tobacco. It has also created a legal void by denying authorization to thousands of other products in a wide range of flavors—often far more popular than the authorized alternatives.
Several convenience store owners I spoke with in the Philadelphia suburbs were pulling products from their shelves as a result of FDA actions.
The result is a massive illicit market in the US. In a recent analysis of discarded vaping packs, conducted across several states by the market research group WSPM, an astonishing 97 percent were not authorized to be sold. I also found most products sold were unauthorized in my own past research.
The FDA has started going after legal retailers of products of dubious legality, threatening them with fines and other legal actions. Several convenience store owners I spoke with in the Philadelphia suburbs were pulling products from their shelves as a result. These stores were all making over $2,000 per week in vape sales revenue in 2024, but were sent warning letters by the FDA towards the end of that year.
None of the store owners were sure how serious the FDA’s threats might be, but one of the owners had removed all unauthorized vaping products from his store and was left with just three brands on sale: all tobacco flavors made by a major tobacco company.
Every owner I spoke with said they had taken “legal advice.” Yet they were not unduly worried, because all of them still earn far more from cigarette sales than they do from vapes.
One unregulated vendor I interviewed was making over $700 per week selling disposable vapes—up from almost nothing a year prior.
The unauthorized vaping products they were selling are now being sold instead on city streets, and at informal outlets like flea markets across suburbs, by vendors who often also sell illicit drugs.
One vendor I interviewed was making over $700 per week selling disposable vapes. That isn’t much money compared with his business selling state-banned drugs, but it’s up from almost nothing a year prior. All traders watch for changes in demand, and if people cannot buy vapes legally, illicit sellers are happy to supply them.
The problems with this are evident. Accountability for product quality and standards is lost, which could pose health risks for consumers. Unregulated traders have no incentive to adhere to age restrictions. And when informal markets are harder for many people to access, there’s a strong chance that vapers who used to smoke will revert to combustible tobacco—which is both deadly and readily available.
In the UK, meanwhile, the illicit vapes market has jumped from very low levels three years ago to 31 percent, according to my latest sampling in February.
The UK’s ban on disposable vaping products is not due to take effect until June. But it appears that anticipation of it—with stores phasing out sales of disposables—may already be driving that part of the market underground.
When it comes to refillable vapes, as regulatory expert Clive Bates told me, it is likely that Brits “prefer the products with larger tank sizes” that are illegal in the UK.
Smoking is the real threat—and when vapes are substitution products, banning or restricting them is liable to increase smoking.
In the US, it is essential for the FDA to do a better job. One of the first tasks for Dr. Marty Makary, the incoming head of the agency, should be to speed up authorizations of good-quality vaping products that are currently in a legal limbo. A robust legal market of products consumers actually want must be the goal.
In the UK, the illicit market is still relatively small at present, with the majority of discarded packs reflecting legal sales. However, the recent surge in this market—with my latest numbers far higher than just a year earlier—should be cause for concern. Bans and restrictions will only fuel it further.
The UK should revert to its former position of encouraging legal uptake of good-quality products and reverse its disposables ban. Recent evidence shows that smoking rates in parts of England are rising for the first time in 20 years, and this is likely linked to the clampdown on vaping.
My sample sizes are small, and may not reflect the wider markets. But my research can be added to other evidence signaling terrible outcomes for public health. Smoking is the real threat—and when vapes are substitution products, banning or restricting them is liable to increase smoking.
The vaping products consumers want must be legally available on both sides of the Atlantic. When that happens, tax policies that encourage switching from smoking to vaping will also be vital.
Photograph by Engin Akyurt via Pexels
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