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Opinion | FDA’s sluggish e-cigarette response is unacceptable

I am concerned about the Food and Drug Administration’s repeated failures in regulating the disposable e-cigarette market.

Yerevan Armenia - December 12, 2022: Elf Bar BC4000. Electronic Cigarette isolated on a white background. Electronic device that simulates tobacco smoking.
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Prior to joining the legislature, I earned a scholarship to North Carolina State University where I enrolled as a college athlete and eventually embarked upon a career as a professional football player for the Canadian Football League and Arena Football League. These experiences helped give me a passion for health, nutrition, and holistic wellness. So as someone that cares deeply about healthcare related issues, I am concerned about the Food and Drug Administration’s (FDA) repeated failures in regulating the disposable e-cigarette market. The FDA’s inability to stop the flood of illegal e-cigarettes is a direct threat to millions of children, jeopardizing their well-being and future.

As Senator Dick Durbin, D-IL, stated in a March 2023 letter to the Attorney General and the FDA Commissioner: “Under the Tobacco Control Act (TCA), the Food and Drug Administration (FDA) is responsible for regulating the tobacco and e-cigarette market to protect public health. But for years, the agency has failed to do its job—allowing millions of new vaping products to illegally enter the market. 

In 2020, FDA initiated a requirement that all e-cigarette products apply for and receive regulatory approval in order to remain on the market. Any product that does not have authorization is on the market illegally. To date, the agency has authorized only 23 specific e-cigarette products, none of which are disposables. That should mean fewer e-cigarettes being sold in U.S. stores however, more than 5,800 unique disposable products are now being sold in numerous flavors and formulations. This represents a 1,500% increase from 365 products in early 2020. The number of brands increased by 46% over three years to about 260 brands, each of which might market thousands of different products. 

Bipartisan leaders at all levels of government have been pressing the FDA to act. This February, Senate Majority Leader Chuck Schumer called on the FDA to pull Elf Bar, a top-selling disposable e-cigarette brand manufactured by a Chinese company, from shelves. Schumer said: “The youth vaping epidemic remains at concerning levels and I am worried that with the rise of companies like Elf Bar, who offer cheap, colorful, and sweet disposable e-cigarettes, that we could see this crisis reach new heights.” 

In May, FDA directed customs officials to seize incoming shipments of Elf Bar. In response, Elf Bar manufacturers simply changed the name of the product to EBCreate, and their products are still widely available. According to a recent article by AP, “The new products bear the same QR code previously found on Elf Bar packages to help customers verify their authenticity, as well as the same licensing code assigned by Chinese tobacco authorities”. Despite their flagrant flouting of FDA regulations, FDA has never issued a warning letter to Elf Bar’s manufacturer. 

The FDA’s sluggish response is simply unacceptable, and with each passing day of inaction, more children are enticed into vaping, exposing them to a lifetime of health risks and addiction. The FDA must be held accountable and ensure the swift and effective enforcement of regulations that protect our youth from the dangers of e-cigarette use.

Jeremy Gray serves in the Alabama Legislature and recently announced his candidacy for Congress in Alabama’s 2nd Congressional District.

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Jeremy Gray serves in the Alabama Legislature representing Lee and Russell Counties.

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