WASHINGTON – Health and law enforcement officials are set to face congressional questioning over the rise of illegal electronic cigarettes in the U.S., a multibillion-dollar business that has flourished amid haphazard enforcement by regulators.
Members of the Senate Judiciary Committee will hear from top officials at the Food and Drug Administration and Justice Department about attempts to stay on top of the vaping industry, which includes major American brands — Juul and Vuse — alongside thousands of smaller, unauthorized varieties based in China.
Senate Judiciary Chairman Dick Durbin has previously urged the two agencies to cooperate in bringing legal action against makers of unauthorized products, especially fruit and candy flavored e-cigarettes that can appeal to teens. In prepared remarks, the Illinois Democrat states that both agencies “sat on their hands” while “companies addicted a new generation of children to nicotine.”
“I simply do not understand how FDA and DOJ have permitted thousands of products to remain on store shelves when their manufacturers have not received authorization, or, in some cases, even filed an application,” Durbin states.
The FDA has OK’d a handful of e-cigarettes — including Vuse — as alternatives for adult smokers. All other products on the market, including major sellers like Juul, are pending review or considered illegal by regulators.
The FDA and DOJ have legally barred about a half-dozen vaping companies from selling their products in the U.S., but many more manufacturers launch new products, primarily disposable vapes that can’t be refilled and are thrown in the trash.
Industry analysts estimate disposable vapes make up 30% to 40% of the roughly $7 billion-dollar vaping market. The two best-selling disposables — Breeze and Elf Bar — generated more than $500 million in sales last year, according to Nielsen retail sales data analyzed by Goldman Sachs.
Both brands have been sanctioned by FDA regulators but remain widely available, in some cases with new names, logos and flavors. More than half of the 2.8 million U.S. teens and adolescents who vaped last year said they used Elf Bar.
On Monday, the FDA and DOJ announced a new government task force, which will include the U.S. Postal Service and other agencies, to try and tackle the problem. That step was recommended in 2022 by an outside panel that reviewed longstanding complaints about the FDA’s tobacco program, including a backlog of product applications and the proliferation of illegal e-cigarettes under its watch.
Former FDA officials have long blamed bureaucratic wrangling between their agency and law enforcement for the slow pace of legal action.
The FDA can conduct investigations and recommend cases, but only the Justice Department can bring lawsuits. Federal prosecutors may decline to pursue cases for any number of reasons, including competing priorities, limited resources, perceived weaknesses in the case or the potential repercussions of losing in court.
Using its own authorities, the FDA has sent hundreds of warning letters to vape shops and e-cigarette manufacturers in recent years, calling on them to remove or discontinue their products. But the letters have done little to dissuade companies from selling new products.
Wednesday’s hearing is the first full-committee session examining the vaping market since 2019, when lawmakers were focused on Juul, the U.S. company widely blamed for sparking the underage vaping trend.
Pressured by Congress and the FDA, Juul and other domestic manufacturers dropped their flavored products and marketing campaigns by late 2019.
Overall, teen vaping has declined in the years since the COVID-19 pandemic amid new age restrictions and flavor bans on e-cigarettes and other tobacco products.
Last year, 10% of high school students said they had vaped in the previous month, down from 14% in 2022.
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