The Year Is 2020, and the US Has Banned Vapes. What Happens Now?

May 15, 2019

President Donald Trump finished his overture at this year’s Rx Drug Abuse and Heroin Summit in Atlanta by asking attendees to stand with him in fighting for a “drug-free America.”

Trump’s “work” to fight any public health crisis related to the widespread use of legal or illicit substances has featured policies that undercut years of harm reduction success. His administration’s approach to tobacco-related health issues and nicotine is a case in point.

During the tenure of former Food and Drug Administration (FDA) commissioner Scott Gottlieb, e-cigarettes and other risk-reduced nicotine productsnotwithstanding the recent approval of heat-not-burn for the US marketwere widely demonized.

Despite Gottlieb’s exit in April, the FDA’s new acting commissioner, Norman Sharpless, remains adamant in resisting steps that could transform the landscape for people threatened with smoking-related disease and death. Days after Sharpless assumed his position, the comment period for the proposed mixed-retail sales ban on all non-tobacco-flavored e-cigarette products was extended by an additional 15 days.

Sharpless is now on record advocating for a paternalistic and prohibitionist approach to regulating e-cigarettes and other products in the guise of “protecting children.”

At the state and locals levels, too, anti-tobacco harm reduction moves are gaining pace: Witness Massachusetts’ proposed legislation to ban e-cigarette sales, and a similar step in San Francisco.

In light of all this, let’s try a thought experiment—one in which my imaginative license will sadly be all too modest.


A Worst-Case Scenario

It’s late 2020. Flushed with victory after a toxic election season, Trump ushers in the FDA’s cooperation with vested tobacco control interests to promote a “nicotine-free” society, in coordination with the president’s “drug-free America” mantra.

Under a rule introduced in 2009 by the Obama-era FDA, cigarettes that have characterizing flavors including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee were already strictly prohibited. Swiftly, an amendment to the Food, Drug, and Cosmetic Act institutes a ban on e-cigarettes with non-tobacco flavors.   

Shortly afterward, through comprehensive federal regulation and legislative action, all forms of liquid nicotine are bannedin a fashion modeled on the nationwide criminalization of such substances already seen in jurisdictions like Australia and Hong Kong. The only vaporizers available to consumers contain nicotine-free liquids. Combustible cigarettes, while regulated further, remain available, as they have in those other countries.

They can attempt total abstinence. They can return to combustibles. Or they can resort to going underground.

This has big consequences for the one in 20 American adults10.8 million peoplewho use e-cigarettes recreationally or as smoking cessation aids. It immediately shuts down over 35,000 vape shops across the country and manufacturers of over 460 e-cigarette brands on the US market—part of an industry that was expected to be worth $20.5 billion in North America by 2025.

Now, former smokers who have switched to e-cigarettes—as well as their counterparts who never smoked but only consumed nicotine by vaping—have three options.

They can attempt total abstinence from nicotine—an effort which, for many, is doomed to be unsuccessful. They can remain compliant with the ban by returning to combustibles, which are estimated to be 20 times more harmful. Or they can resort to going underground for liquid nicotine.

The people in this last group will find that they have numerous options. Since the market was already so developed during its legal era, large numbers of shop owners and independent manufacturers—the tobacco companies return to selling combustibles only—continue producing such products illicitly while the demand remains.

Thanks to reports on the workings of the illicit vaping trade in Australia, the pathway to this happening is clear. But the news is not great for vapers. As with any illegal market born out of the prohibition of a once-legal industry, consumers have to become willing to compromise with potentially riskier iterations of the banned products were once produced in a regulated environment.

Some producers of illicit nicotine, already charging a risk premium, begin to cut corners to improve profit margins; to this end, some even combine the vaping liquid with unwelcome or risky substances.

Mixing around vaping substances is nothing new, of course. Some vaporizers available on the US illicit market back in 2019 contained N-Dimethyltryptamine (DMT), a psychedelic drug; however, some consumers were choosing to use DMT. In an illicit market that swiftly becomes the “Wild West,” fewer and fewer vapers can rely on the honesty of their suppliers.

In whiter, wealthier neighborhoods, vaping continues with fewer consequences. But underprivileged and minority communities are subject to increased policing.

The undesired substances that vapers now consume result in some highly publicized health problems and a few deaths—which are quickly seized upon by the government to justify law enforcement crackdowns.

The resulting “epidemic,” blamed squarely on the “harms of nicotine,” leads to a major push in policing efforts. The War on Drugs has provided an expansive playbook to inform this campaign.

Across the nation, individual nicotine users are subjected to criminal sanctions, including arrests, fines and incarceration. In whiter, wealthier neighborhoods, this is less pronounced and vaping continues with fewer consequences. But law enforcement agencies subject underprivileged and minority communities to increased policing and scrutiny, and newly swelling jail populations reflect this.

Nicotine dealers become high-priority policing targets, and before long, we see the first nic-lab busts—as well as some drug-induced homicide prosecutions for once-legal providers whose post-prohibition products contained dangerous adulterants. The Trump administration points to these successful results of its War on Vaping.

Nicotine also becomes a key part of the battle to secure our borders. The FDAwhich back in 2019 already held power over the importing of risk-reduced nicotine products, per the authority of previous tobacco control legislation outlined in 2016is now permitted to coordinate with other drug enforcement authorities, like the Drug Enforcement Agency and US Customs and Border Protection.

An increase follows in seizures of nicotine products at all points of entry into the US, with individuals facing sanctions and criminal charges for the illicit trafficking of a banned substance. The criminal code having been amended to cover liquid nicotine and nicotine-containing devices, the penalties for importing these banned items range from fines to several years in prison. As a result, once-law-abiding individuals, including foreign citizens, are classified as criminals for misinterpreting federal law and border control authorities.

Nicotine smuggling becomes a high-risk pursuit, but despite everything, US demand for nicotine does not fall. So increasingly, drug cartels and existing illicit trade networks fill the vacuum.  

Before long, as the squeeze on illicit US-based nicotine producers continues, DEA reports give Trump the excuse to warn the American people about nefarious illicit nicotine producers in China and Mexico. Progress toward “The Wall” accelerates.

Meanwhile, all those law-abiding vapers who switched back to cigarettes rest safe from legal consequences, gambling instead on their long-term health.


Back to 2019

Of course, this is all speculative and at some level unlikely. When the current vaping market is already so developed, could federal authorities really enforce a nationwide prohibition on e-cigarettes and vapes? By common sense, they could not—but that doesn’t mean some would not try.

The scenario I described, informed by US experiences with other drugs and by international experiences with vaping prohibition, is less remote than we would like to think. And even incremental further steps in that direction would produce proportionately harmful consequences.

Demonstrable FDA- and media-fueled trends in public perception surrounding nicotineand the subsequent responses from lawmakersare more than enough to justify our consideration of a prohibition scenario.

One particular bill currently before Congress could create the legal environment needed to develop an illicit market. The Reversing the Youth Tobacco Epidemic Act, proposed by Reps. Frank Pallone Jr. (D-NJ) and Donna Shalala (D-Fla.), could force us to question the future of US vaping as we know it.

One of the signature measures proposed in the act is a dual ban on flavors (including menthol) and e-commerce sales for all vaping devices and associated products. Both proposed rules, according to the bill’s sponsors, are conceptualized as a means to protect children from accessing nicotine products.

“Think of the children!” Haven’t we heard that somewhere before?

The result of this bill would be the total elimination of a vital sales channel for small manufacturers—and the further squeezing of smokers’ and former smokers’ access to a lifesaving harm reduction tool.

It isn’t prohibition, but you have to start somewhere.

Image by heblo from Pixabay 

Michael McGrady

Michael is a journalist and researcher. His work has been supported by the Knowledge-Action-Change Tobacco Harm Reduction Scholarship program; the independently administered scholarship is supported by a grant from the Foundation for a Smoke-Free World. Michael is also the journalist-in-residence and visiting research fellow in tobacco and drug harm reduction policy at the American Consumer Institute, Center for Citizen Research. He conducts consumer-oriented and behavior research on the impacts of public health regulations on people who use drugs, especially nicotine. His work has appeared in the Wall Street Journal, the Hill and the South China Morning Post. He lives in Colorado.

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