Over the holidays, the federal government has taken several steps to curb the youth tobacco epidemic. In the past few weeks the legal age for purchasing tobacco has increased from 18 to 21 and the Food and Drug Administration (FDA) has announced its intentions to regulate flavored tobacco products.
In December 2019, Congress included an increase in the age limit for buying tobacco in an appropriations bill that was signed by President Trump. The new law, which the FDA implemented immediately, prevents businesses from selling tobacco products to anyone under the age of 21. Advocacy groups, who have long argued for increasing the legal age for tobacco purchases, found an unlikely ally in tobacco companies, such as Juul Labs, who have begun to support such legislation.
"no e-cigarettes are currently on the market legally"
Alex Azar, Secretary of HHS
Shortly after, in the first days of 2020, the FDA released their finalized enforcement policy for cartridge-based e-cigarettes. Under this new policy, the FDA will prioritize its enforcement of products widely used by teens, effectively banning the flavored vaping products common among high school students. While most flavors will be banned, menthol and tobacco flavored products will still be allowed. In a statement from the FDA, the Department of Health and Human Services (HHS) Secretary Alex Azar said, “HHS is taking a comprehensive, aggressive approach to enforcing the law passed by Congress, under which no e-cigarettes are currently on the market legally.” The FDA has given companies 30 days to stop producing, distributing, or selling these products or else risk enforcement actions.
Despite the ban on flavors for cartridge-based e-cigarettes, smoke shops will still be able to sell the flavored e-liquids used in refillable tank-based e-cigarettes. Additionally, companies will still be able to apply for approval of flavored products. In a statement, President Trump said, “Hopefully everything will be back on the market very, very shortly.”
The effort to curb tobacco sales comes amidst a growing epidemic of teen tobacco use. The increase in teen tobacco use has largely been driven by the increased use of e-cigarettes and vaping products among teenagers, with more than 25% of high school students saying they have used a vaping product. Importantly, most teens who use e-cigarettes indicate they use flavored products. Because students who use e-cigarettes are up to ten times more likely than their peers to smoke traditional cigarettes and nine out of ten smokers tried their first cigarette by the time they were eighteen, many health experts are concerned that youth vaping will ultimately lead to a large number of today’s youth experiencing preventable health problems later in life.
In addition to teen use, a recent outbreak of lung injuries related to vaping has raised concerns about vaping products. However, evidence is mounting that these injuries are related to vitamin E acetate, an additive primarily found in illegal THC-containing e-cigarettes rather than legally sold products containing nicotine or THC.
Both the government and companies have begun responding to youth tobacco use and vaping-related injuries. Prior to the FDA’s announcement, the Trump administration had been considering a ban on flavored e-cigarettes for several months; however, the extent of any such ban has changed over time. In response to the increased pressure for state and federal bans, Juul Labs, a major e-cigarette producer, announced in October of 2019 that they would be discontinuing many of its flavored products. Additionally, stores like Walmart, Walgreens, and Kroger have said they will stop selling vaping products.
The Family Smoking Prevention and Tobacco Control Act, passed in 2009, gave the FDA the broad authority to regulate tobacco products, including the ability to review and approve products before they entered the market. As a result, the FDA asserted regulatory authority over e-cigarettes in 2016. At the time, the agency allowed products already on the market to stay there during a grace period of several years so that manufacturers could prepare application materials before submitting them for agency review; the deadline for submission was recently set to May 12, 2020.
Interestingly, in addition to granting the FDA authority over tobacco, the Tobacco Control Act of 2009 directly banned flavored cigarettes, with the exception of menthol and tobacco flavors which were favored by youth and younger smokers at the time. However, other types of tobacco products were not included in this ban, thus allowing products like e-cigarettes to continue to include a wide variety of flavors.
Sixteen states had already passed laws raising the age limit for buying tobacco
In 2015, the National Academies released a report on the impact of raising the tobacco age. In general, the report indicated that teens primarily access tobacco through peers (i.e., an eighteen-year-old in high school could buy tobacco for younger classmates). As such, the report showed that raising the legal age limit to buy tobacco to 21 would have a substantial impact on reducing youth tobacco use whereas further increasing the age limit to 25 would have minimal effect. Notably, the National Academies report looked at data from 2011 and 2012, but e-cigarette use among teens rose from 1.5 to 16% from 2011 to 2015. As such, it is unclear how the rising popularity of vaping would affect the models used by the Academies.
Prior to this new federal law, sixteen states, starting with Hawaii in 2017, had already passed laws raising the age limit for buying tobacco to 21. Additionally, several bills, such as the Tobacco to 21, Stopping Consumption of Tobacco by Teens, and Tobacco-Free Youth Acts, had been introduced to Congress in 2019. These bills formed the basis of the final text included in the appropriations bill that increased the tobacco age.
In an FDA press release, the HHS Secretary Alex Azar claimed “HHS is taking a comprehensive, aggressive approach to enforcing the law passed by Congress, under which no e-cigarettes are currently on the market legally.” However, the response of advocacy groups to these actions has been lukewarm with various groups indicating much more will need to be done to have an impact.
"we once again have a hollowed-out policy that will allow the tobacco industry to continue to attract kids"
Gary Reedy, CEO of the American Cancer Society
For instance, Tobacco 21, an advocacy group that supported raising the legal age limit, was grateful for the new law but expressed a need for more to be done. In a statement, Tobacco 21 argued that “the [FDA] has been charged with enforcing the tobacco sales age under age 18 for the last ten years” and poor enforcement of the legal age limit is part of the overall problem. As such, “the FDA must dramatically revamp its enforcement protocol if raising the age is to have any substantial effect.”
Similarly, Gary Reedy, CEO of the American Cancer Society, released a statement regarding the effective ban on flavored vaping products saying “The FDA’s decision to abandon its announced plan to clear the marketplace of all flavored e-cigarettes, including menthol, is unconscionable. Instead of moving forward with an effective proposal that could have a meaningful effect in curbing the youth e-cigarette epidemic, we once again have a hollowed-out policy that will allow the tobacco industry to continue to attract kids to a lifetime of nicotine addiction.”
Advocates are skeptical of the support tobacco companies have recently given to laws to increase the age limit and worry these laws may be used as token evidence of these companies attempts to curb youth tobacco use even as they target teens with new products.
The SciPol Takeaway:
At the state level, increasing the age limit for purchasing tobacco has had mixed results. For instance, California has seen teen vaping increase from 8.6% in 2016 to 10.9% in 2019 despite both an overall decrease in youth tobacco use of 0.9% and legally increasing the tobacco age to 21 in that time frame. At the same time, increasing the tobacco age limit to 21 without similarly stepping up enforcement may have minimal effect on teen tobacco use; after all, youth smokers were already under the legal age limit. Although the National Academies showed that increasing the age to 21 would reduce teen smoking, it remains to be seen if the rapid increase in popularity of e-cigarettes will defy the models used in the Academies report.
Lead Policy Analyst @ SciPol.org
Similarly, the FDA’s new enforcement priorities appear inadequate to truly address the problem. While removing flavored cartridge-based e-cigarettes from the market is a promising first step, the FDA announcement amounts to a stop-gap approach. Ultimately, tobacco companies may still obtain FDA approval for flavored products, returning them to market. At the same time, it is possible that teens have preferred cartridge-based flavored e-cigarettes out of convenience and may now simply settle for menthol flavored e-cigarettes or move to tank-based options, for which flavors are still allowed.
While seemingly impactful on the surface, these two changes to the laws and regulations around tobacco products may only slow the youth tobacco epidemic rather than reverse it. It is likely that these plans will only be seen as first steps to acknowledge the problem with substantially stronger changes needed to actually reverse the ongoing epidemic of teen tobacco use.