Article from Reason by Jacob Sullum.

Moving forward with its plan to restrict sales of e-cigarettes in the name of preventing underage vaping, the Food and Drug Administration today unveiled a “draft compliance policy” that effectively bans all flavors except tobacco, mint, and menthol but prioritizes enforcement against products “offered for sale in ways that pose a greater risk for minors.” What that means is not completely clear, although it is bound to create headaches for manufacturers and retailers while making it harder for both former smokers and people interested in quitting to obtain the vaping products they prefer.

The FDA plans to “end current compliance policy” for e-cigarettes, except the three exempted flavors. That policy gave manufacturers until August 2022 to get FDA approval for their products, four years later than the original deadline. In the interim, they were allowed to continue selling products that were on the market as of August 8, 2016. The FDA intends to move the deadline up by a year for the disfavored flavors (i.e., nearly all of them) and end its policy of preapproval forbearance as it applies to those products. But the agency suggests that it won’t take immediate action against them unless they are sold in a way that implicates its enforcement priorities.

The FDA lists four of those priorities: 1) “products sold in locations that minors are able to enter at any time,” 2) “products sold through retail establishments and online retail locations that have sold to minors after issuance of the guidance,” 3) “products sold online with no limit on the quantity that a customer may purchase within a given period of time,” and 4) “products sold online without independent, third-party age- and identity-verification services that compare customer information against third-party data sources, such as public records.”

Although the list is not necessarily exhaustive, it seems reasonable to surmise that flavored e-cigarettes, pods, and e-liquids won’t be subject to immediate enforcement action if they are sold by stores that do not admit minors or by online vendors with age verification and quantity limits. Theoretically, a convenience store could get away with selling such products if it restricted them to a separate section where minors are not allowed, but the cost of doing that surely will be prohibitive in most cases. (That option seems to be aimed mainly at evading a provision of the Family Smoking Prevention and Tobacco Control Act that says the FDA may not “prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets.”) The upshot is that adults who like the disfavored flavors will have to get them from vape shops, tobacconists, or websites with FDA-approved policies, as opposed to the thousands of other stores where they were heretofore available.

Read the entire article at Reason.

Image Credit: By TBEC Review [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

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