Flavored Vapes are at the Center of a $9 billion Showdown—Will Harm Reduction Win over Regulation?
The federal government and e-cigarettes can’t seem to get along. Like two cats fighting, it’s mostly terrible noises and ridiculous posturing with extended pauses between any actual bouts of scratches and bites.
Yet something about a recent dustup seems to signal the feud has reached a new intensity. It began at the end of October when federal agents seized $76 million worth of product.
The bust—a joint operation by the Customs and Border Protection Agency and the Food and Drug Administration—was ostensibly a raid on illegal e-cigarettes. But it was more accurately seen as proof that government warning letters have teeth. Following years of papering retailers, the feds got fed up.
The seizure happened just weeks before the Supreme Court heard arguments in FDA v. Wages and White Lion Investments, the case that could decide the fate of flavored vaping products.
The seizure happened just weeks before the Supreme Court heard arguments in FDA v. Wages and White Lion Investments, the case that could decide the fate of flavored vaping products.
This, um, coincidental timing brings us to a profound moment. As a new administration settles into its role in Washington and the Supreme Court mulls over the recent arguments, the vaping industry must brace for news on two separate fronts—each one capable of capsizing the market.
The Political Angle
The second Trump administration strolled into the midst of a vaping policy disaster. Thanks to bad laws and worse execution, the great majority of vape sales happen in a gray space between strictly legal and not.
Part of that is his own fault. During his first term, Trump appointed five different people to head the FDA. The whiplash of new commissioners kept the agency in constant limbo with unclear priorities and guidelines.
Then there’s the law itself. The FDA wasn’t allowed to regulate vaping products until 2016—a full 11 years after e-cigarettes came on the market. Since the beginning, the process has been a cluster.
“The manifold problems begin with the FDA’s authorization process for e-cigarettes,” wrote Alli Boughner, vice president of American Vapor Manufacturers. “The agency’s regulatory approach is designed to ensure that a product appeals to adult smokers without enticing non-smokers, especially children. It seems like a reasonable standard, but the PMTA (Premarket Tobacco Application) is a nightmare for applicants.”
Indeed, the process is expensive, time-consuming, and rarely leads to approval. Of the millions of product applications the agency has received since 2016, it’s approved only a couple dozen.
This is exactly the type of problem Trump promised to solve. During his campaign, he took to Truth Social to proclaim his intention to “save Vaping again!” And while that’s not exactly what happened, it contains a bit of truth: It was Trump’s administration that split the baby the first time lawmakers wanted to axe flavored vapes. In a true compromise, Trump proposed limiting the ban to only cartridge-based devices while allowing single-use and e-liquid refills to continue carrying better-tasting products.
Like all good compromises, it couldn’t last. And this time around, the Vaping Voting Bloc that Trump actively courted—around 15 million Americans—wants better assurances.
The President has signaled two efforts to help the industry. First, he wants to roll back federal agencies’ ability to regulate the industry, which could strip the FDA of its vice-like grip on vaping products. Second, and more importantly, advisors close to the President have said he views flavored vapes as a states’ rights issue, meaning he’d like the federal government to wash its hands of vaping regulations once and for all.
That could leave the country in another patchwork of legal drama as some states outlaw flavors while others don’t, much like cannabis. It would certainly mean hard times for smoke shops in places like Iowa and Florida, but it would be better than a nationwide ban.
The Kids Are Alright?
Of course, the battle wages beyond the regulatory environment. On the other front, Supreme Court justices are now weighing the latest evidence for and against flavor vapes. While much of the arguments will sound familiar, a few data points should be clearer than before: critics of vaping have overplayed their hand for years.
Despite the harm that vaping can cause, all the best research suggests that flavored vaping devices are excellent at keeping people off much-deadlier cigarettes. They’re scientifically proven harm-reduction strategies.
The latest research shows that wherever flavored e-cigs are outlawed, smokers return to old-fashioned combustibles. Yet when politicians voice support for bans, they do so out of concern for a specific niche of public health: those poor kids.
But Gen. Z isn’t like previous youngsters. They drink less, they have less sex, and they’re not using tobacco products. According to the latest National Youth Tobacco Survey, less than eight percent of high schoolers vape with any regularity. That’s a far cry from the 2019 numbers, which showed vaping was popular with more than a quarter of American teens.
Is eight percent too high? Some concerned parent groups might like that number to be zero, but many believe it’s simply not practical to attempt to out-legislate youthful rebellion.
“Kids always want what adults have. Kids smoked tons of cigarettes before there was a vape. And now, they’re going to get their hands on vapes. That’s just a fact of life,” said Joey DeStefano, Chief Commercial Officer at Puff Brands. “These flavored vapes, they’re not made for kids. Yes, there are some bad actors that create vapes with video games with dumb shit on them, but most of us make vapes for adults who want an alternative to combustion. I’m 41 years old, and I love blue raspberry. I like flavors. It’s a lot more pleasant to vape something that tastes like a mango than something that’s trying its best to taste like tobacco.”
What is clear in our vaping moment is this: The stakes are high. With more than 400,000 Americans dying each year from smoking-related illnesses and a $9 billion vaping industry hanging in the balance, the question isn’t just about flavoring. It’s about whether our public health policy can evolve to embrace harm reduction or if we’ll need to rely on another decade of small business raids and moral panic to flavor our lives.
