“One of the most baffling regulatory failures we’ve ever seen, or will see.”
That’s how David Dobbins, chief operating officer of the anti-tobacco Truth Initiative, views the federal Food and Drug Administration’s hands-off approach to e-cigarettes, at a time when the number of teens using them is skyrocketing.
Dobbins spoke to a panel of the Food, Drug and Cosmetic Law Section at the 2020 Annual Meeting of the New York State Bar Association (NYSBA).
A recent survey found that 11 percent of middle schoolers and 28 percent of high schoolers have vaped, statistics that Dobbins called “terrifying.”
Truth Initiative, the largest anti-tobacco nonprofit, and other public health groups have sued the FDA over its lack of oversight of e-cigarette marketing. The FDA has had the power to regulate cigarettes since 2009, and in August 2016, said it would start regulating e-cigarettes as well. But after President Trump took office, the FDA said it would delay oversight on e-cigarettes until 2022.
There has been some federal action related to vaping. The Trump administration recently announced limits on the use of e-cigarette flavors, which tend to appeal to teens. And federal health officials are investigating recent cases of lung injuries – some fatal – tied to vaping.
In the meantime, state and local governments are stepping up their efforts against vaping, panelists told the session. Several, including New York City, have already banned flavored e-cigarettes.
Morenike Fajana, special counsel at the New York attorney general’s office, said that New York State has sued Juul, which introduced e-cigarettes in 2015 with a wave of advertising and flavors like creme brulee, mango and peach. The advertising campaign featured bright colors and young models, and was clearly “geared toward children,” Fajana said.
The attorney general’s office filed a lawsuit in November 2019 that accused the company of deceptive advertising, marketing and selling to young people, and misrepresenting e-cigarettes as safer than regular cigarettes.
New York State has also banned the sale of e-cigarettes to anyone under 21, and prohibited vaping indoors and at playgrounds, Fajana said. In addition, two bills have been introduced to entirely ban e-cigarettes in the state, she said.
Kimberly Anne Kessler, assistant health commissioner for the Bureau of Chronic Disease Prevention at the state Department of Mental Health and Hygiene, said that New York City has a number of initiatives that “make it harder to smoke and easier to quit.” For example, a 2018 city law sets a minimum price of $13 a pack for cigarettes, making them too costly for many teens and adults.
Adult use of cigarettes in the city has declined from about 21.5 percent in 2002 to about 13 percent now, Kessler said.
But she called the growth of e-cigarette use among young people “an emerging public health crisis.” While traditional cigarette use has plummeted to about 5 percent of public high school students in 2017, the growth of vaping has wiped out all those public health gains, with about 21 percent of teens using tobacco in some form, she said.
Kessler said her department has recommended that pediatricians start screening patients for e-cigarette use starting at age 10. In addition, the department has a digital media campaign aimed at kids, emphasizing the risk of addiction.
Without federal regulation, it’s not clear what exactly is in vape smoke, although it’s believed that it includes dangerous chemicals, Kessler said.
“We really don’t know what’s in these products,” Kessler said, “but there are a number of reasons to be quite concerned.”