On Dec 31, the Department of Health and Human Services (HHS) announced a nationwide ban on many of the flavored pods that have felt ubiquitous in recent years—a dramatic move that will nonetheless be seen as a small victory within the vaping community after a year-long battle to keep at least some of their products in stores.
The HHS is ordering that makers of electronic nicotine delivery systems—including e-cigarettes and vaping products—stop the manufacturing, distribution, and sale of these pods within 30 days, unless they begin an extensive application process for authorization and ensure that sufficient age verification is mandatory in stores and online.
But the Trump administration also created some notable exceptions within the policy. Menthol- and tobacco-flavored products will remain available for purchase, and open-tank systems—the devices largely favored among old-school vapers, vape activists, and cloud chasers—will not be pulled from the market either.
The agency said that the enforcement policy is primarily a response to the surge in teenage vaping and is aimed at flavored, cartridge-based products, which are popular among young Americans. In addition to the ban, the HHS plans to take action against companies whose marketing is targeted at minors and pursue new public education initiatives in schools. The Trump administration also recently raised the federal age in which to buy tobacco and nicotine products from 18 to 21.
"By prioritizing enforcement against the products that are most widely used by children, our action today seeks to strike the right public health balance by maintaining e-cigarettes as a potential off-ramp for adults using combustible tobacco while ensuring these products don't provide an on-ramp to nicotine addiction for our youth," Alex Azar, the HHS secretary, said in a statement.
Some in the vape industry and tight-knit community had expected an even more stringent ban. At the height of a health scare this past fall, President Donald Trump had urged the Food and Drug Administration (FDA) to pull all flavored e-cigarettes from the shelves as people were being hospitalized for "vaping-related illnesses." Reports of the increase in teenage vape use over the past few years only worsened public opinion, even as the Centers for Disease Control and Prevention tied most of those vape-linked cases to a thickening agent sometimes found in illegal THC cartridges.
"When the ban was announced in September, the conventional wisdom was that there was little hope of stopping it," said Gregory Conley, the president of the American Vaping Association, a pro-vaping advocacy group.
Nevertheless, the vaping community rallied to protect the industry, organizing a November protest in Washington, D.C. Days later, Trump appeared to shift his initial stance, reportedly because advisers had warned him of a political fallout among part of his base. The president said then that he was considering a ban on flavored vaping products that exempted vape shops. The administration hoped such a compromise would please both vape shop owners with strict age-verification procedures and concerned parents whose children were mostly purchasing vape pods from those old enough to buy them.
"Millions of vapers and thousands of small business owners fought back and attained at least a partial victory in the process," said Conley.
The federal move likely won't have much of an effect on JUUL, the vape powerhouse that controls a substantial portion of the U.S. marketplace and has largely been blamed for sparking what the FDA has called a youth vaping "epidemic." Outcries from anti-tobacco organizations like the Truth Initiative prompted the company to remove nearly all of its flavored pods last year—barring tobacco and menthol flavors, a walk-back that virtually mirrors the fed's approach. Other pod-based manufacturers will have to adjust their inventory.
Still, insiders in the vape industry and their harm-reduction advocates know that the fight isn't over. A premarket tobacco application (PMTA) deadline looms in May, and the process involved in filing one could cost e-liquid manufacturers. As a result, many fear that they'll be out of luck by spring and watching JUUL—which is partially owned by the Big Tobacco producer Altria—survive and dominate.
"Hopefully, the FDA will rethink its overall approach to tobacco product regulation and announce a more sensible policy—one that regulates products based on their level of risk,” cautioned Michael Siegel, a professor of community health sciences at Boston University.
The approaching PMTA requirement worries nearly every small-business owner in the vape industry, and many view it as a sort of inevitable apocalypse if that fact doesn't change.
"I'm pleased that this plan allows my business to remain open for the next four months," said Dylan Vogtman, who runs an e-liquid line. "But the PMTA deadline is a ban of its own. The price tag for the application is expensive, and there is no guarantee that it will be accepted or approved."