OPINION | Amid Congressional Efforts to Strengthen Vaping Product Regulations, FDA Struggles to Close Loopholes

by Azziem Underwood

Sen. Patty Murray (a Democrat from Washington) is among the toughest voices in Congress fighting the youth vaping epidemic, but her efforts to curb underage vaping by pursuing additional Food and Drug Administration (FDA) bans on nicotine products may be undermined by the agency's lack of enforcement capabilities.

While the agency has the authority to regulate tobacco products, FDA officials have struggled to keep up with the sheer volume of flavored vapes currently on the shelves illegally. With resources and staff already stretched thin, Sen. Murray should help shore up the funding needed for the FDA to enforce laws already on the books, including its requirement that all e-cigarette products receive approval before being sold.

Although the prevalence of cigarette smoking among young individuals in Washington has significantly declined, dropping over 56% among high school students between 2018 and 2021, underage consumption of disposable vaping products remains high. Nationally, over 2.5 million kids use e-cigarettes regularly, according to the latest CDC data, with disposable vapes accounting for more than half of the vaping devices used by underage smokers.

As Sen. Murray has recognized, this is in part due to a workaround in a Trump-era law banning flavored vaping products that allowed disposable e-cigarettes to remain on the market. While the FDA attempted to close this loophole by requiring an approved Premarket Tobacco Product Application (PMTA) in order to sell flavored e-cigarettes, the agency has been slow to grant approval. Consequently, the majority of products available on store shelves, specifically the flavored disposable products preferred by underage smokers, are still being unlawfully sold.

While the FDA has cracked down on e-cigarette manufacturers in recent months, fining four vaping companies in February and issuing over 550 warning letters to tobacco firms since 2021 for selling unauthorized products, the issue of enforcement remains.

A website reported that despite an FDA investigation into a Maryland-based convenience store located just 250 yards away from the agency's headquarters finding several violations in May, including the sale of unapproved vapes, the store is still selling the products illegally nearly a month later. Similar instances have played out across the nation, with FDA officials telling NBC News "they've been overwhelmed by the volume of e-cigarette marketing applications — 26 million in all."

If we are serious about combating youth nicotine use, this must be the FDA's primary focus. It is starkly clear that the FDA is struggling to enforce existing regulations, and FDA Commissioner Brian King has repeatedly testified before Congress that lack of resources is an issue. I would urge caution before proceeding with additions to the FDA enforcement portfolio that could make it even harder to go after those bad actors who are targeting our kids with illegal products. I would also encourage Congress to ensure the FDA has the resources necessary to conduct inspections, enforce regulations, and take swift action against those who violate the law. Sen. Patty Murray, in her role as the chair of the Senate Appropriations Committee, should lead the charge to provide the agency with the resources it needs to prioritize this issue.

The FDA plays a central role in protecting public health, and with Sen. Murray's support, we can provide it the tools it needs to address youth vaping head-on. By investing in enforcement, we send a strong message that we will not tolerate the sale of these harmful products to our underage population. Together, we can make a difference and secure a healthier future for Washington's youth.

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Azziem Underwood is the former chair of the 11th District Democrats, 8th Congressional District chair, CBTU (Coalition of Black Trade Unionist), GLBT (Gay Lesbian Bi-Sexual Transgender), board member in the Stonewall Democrats, and diversity outreach director and former candidate for the 5th Legislative District senate seat.

Featured image by Natali Brillianata/Shutterstock.com.