On September 3, attorneys general representing 19 states and the District of Columbia filed an amicus brief with the Supreme Court of the United States, claiming that vaping is linked to lung cancer and heavily implying that health risks are higher than with combustible cigarettes.
“Over the last decade, the proliferation of new flavored e-cigarettes has created a youth vaping epidemic that has resulted in a whole new generation of tobacco users,” it stated. “These e-cigarettes are addictive, poisonous, and lead to long-term negative health consequences.”
The same day, an amicus brief filed by 16 members of Congress claimed that “kid-friendly” vape flavors target youth and “hook them on tobacco for life.”
In January, vape manufacturers including Triton Vapes LLC won an appeal to reverse the marketing denial orders they’d been issued by the Food and Drug Administration, under the agency’s heavily-criticized premarket tobacco products applications (PMTA) process.
The appeal is now being considered by the Supreme Court, and the new briefs are in support of an override that would uphold the FDA’s effective ban on sales and marketing of most flavored vaping products. Evidence shows that flavors are central to many people’s ability to switch from cigarettes.
The agency’s June authorization of four menthol vaping products was its first of any flavors other than tobacco; it has rejected millions more applications.
The coalition of AGs is led by Massachusetts Attorney General Andrea Campbell, whose priorities have included legal action against Juul Labs and other vape companies.
“Flavored vape products are scientifically proven to be detrimental to the health and wellbeing of young people,” AG Campbell stated in a press release. Her office did not directly answer Filter’s inquiry as to whether she’s claiming that vapes are scientifically proven to increase risk of lung cancer, or describing other purported harms.
To date, there is no solid evidence to support claims that vaping causes cancer.
The brief claims that research is now revealing serious health risks associated with vaping, including that “certain negative health outcomes are more likely to occur from e-cigarette use than from combustible cigarette smoking. For example, e-cigarette use has been linked to an elevated risk of lung cancer.”
The supporting citation is not peer-reviewed, and only includes data from people who also smoked cigarettes. To date, there is no solid evidence to support claims that vaping causes cancer.
Similarly, a claim that flavored vapes are linked to “DNA damage” was supported by only one study, in which all participants either currently or formerly smoked combustible cigarettes. It was also focused on menthol vapes—which the FDA specifically excludes from candy-and-fruit flavors accused of appealing to youth—and acknowledged that the harms could have come from use of menthol cigarettes rather than vapes. The study additionally claimed that it adjusted for menthol use being “more prevalent in African Americans, who also have lower lung function than Caucasians,” a pervasive medical bias that is not grounded in science.
Some states, including Massachusetts, have banned flavored vaping products. Research has associated vape flavor bans with increased cigarette sales. The AGs claim that the continued availability of flavored vapes is a “resource strain,” before citing data focused on health care costs associated with combustible tobacco products.
“It is safe to assume that the vast majority of people who first use an e-cigarette during a hypothetical free-for-all would become long-term users.”
While the AG brief claimed that flavored vapes “lead to long-term negative health consequences,” any such effects are far less severe than those of the cigarettes vapes can replace. This part of the AG brief is somewhat awkwardly undercut by the brief filed by members of Congress, which said that “data are not yet available about the long-term health consequences of e-cigarette use.”
The lawmakers’ brief, meanwhile, stated that around two-thirds of middle- and high-schoolers who used vapes reported wanting to quit but being unable to do so. It did not contextualize this with the counterfactual question of how many students might otherwise be smoking, due to “common liability,” if vapes were unavailable—an impact that leads some tobacco harm reduction experts to deny net harms from youth vaping at a population level.
“It is safe to assume that the vast majority of people who first use an e-cigarette during a hypothetical free-for-all would become long-term users,” the brief stated, “and would suffer all the health consequences that come with prolonged tobacco use.”
Besides conflating vaping with tobacco use—presumably in adherence to the highly questionable “gateway theory” of youth moving from one to the other—this ignores that the vast majority of youth vaping, according to data from numerous countries, is infrequent and not daily.
On August 30, 11 medical and advocacy organizations collectively filed a separate brief warning that vaping prevalence among youth was “unacceptable.”
Tobacco harm reduction groups, such as Global Action to End Smoking, have also weighed in with briefs of their own, indicating that the FDA’s decisions have abandoned predominantly marginalized people who smoke.
Image via County of Shasta, California
The Influence Foundation, which operates Filter, has received grants from Global Action to End Smoking (formerly the Foundation for a Smoke-Free World) and from Juul Labs, Inc. Filter’s Editorial Independence Policy applies.