Feds Respond to Vaping Public Health Crisis

January 9, 2020

On October 8, 2019, TMA and 16 other healthcare advocacy organizations issued a letter to Governor Lee asking him to “[implement] an emergency temporary measure to restrict Tennessee youth from obtaining vaping products, and encouraging the General Assembly to take more permanent legislative action when it convenes in 2020.” The coalition identified “vaping” by minors as a dangerous national public health issue and called for the administration’s assistance “to prevent another generation of Tennesseans from becoming addicted to nicotine and its consequent illnesses.” TMA’s efforts generated widespread state and even national media attention as vaping-related illness and even deaths prompted other states to react with regulatory and/or legislative action. 

In response to concerns like those expressed by TMA and others, on December 20, 2019, President Trump signed legislation to raise the federal minimum age of sale of tobacco products from 18 to 21 years. It is now illegal for a retailer to sell any tobacco product – including cigarettes, cigars and e-cigarettes – to anyone under 21.

On January 2, 2020, the FDA issued an enforcement policy on electronic nicotine delivery systems (ENDS), specifically flavored e-cigarette products that appeal to kids. FDA gave companies 30 days to cease the manufacture, distribution and sale of unauthorized flavored cartridge-based e-cigarettes before the agency will take enforcement action. The FDA reports it will focus its enforcement efforts on specific types of products that do not have premarket authorization, including those where the manufacturer has failed to take adequate measures to prevent access by minors. 

  • Any flavored, cartridge-based ENDS product other than tobacco- or menthol-flavored products;

  • All other ENDS products for which the manufacturer has failed to take or is failing to take adequate measures to prevent minors’ access; and

  • Any ENDS product that is targeted to minors or likely to promote use of ENDS by minors.

The policy does not apply to tobacco or menthol flavors. 

The FDA maintains that by prioritizing enforcement of flavored cartridge-based ENDS products it is attempting to balance public health concerns related to youth with considerations regarding adult cigarette smokers who may try ENDS products to transition away from combustible tobacco products.