The World Health Organization (WHO) has identified e-cigarettes as a matter of global concern, requiring "urgent action to protect children." Dr Ruediger Krech, WHO Director for Health Promotion, commented that they "target children through social media and influencers, with at least 16,000 flavors. Some of these products use cartoon characters and have sleek designs, which appeal to the younger generation."
Sweet and fruity flavored e-cigarettes, vapes, and nicotine pouches are particularly attractive to kids (think cotton candy and bubble gum). They are highly addictive and can be very harmful — not least due to the chemicals used in these artificial flavorings. Ironically, China has banned the sale of flavored e-cigarettes domestically in a bid to curb underage vaping, despite being one of the biggest exporters of flavored vapes internationally.
The Situation Stateside
Minors vaping is also a major health concern in the U.S. For example, a national survey by the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) revealed that in the United States, roughly 2.55 million middle and high school students used e-cigarettes during the early part of 2022. 85% of those youths reported using flavored products, with over half opting for disposable e-cigarettes.
At the beginning of 2020, the FDA limited permissible flavors in cartridge-based reusable e-cigarettes to tobacco and menthol, which appeal to a more adult market. However, this did not extend to disposable e-cigarettes.
Big Tobacco's California Appeal Goes Up in Smoke
Legislators have taken notice, and some tobacco companies are not happy about it. On January 8, 2024, the U.S. Supreme Court rejected a challenge to a 2020 California law banning the sale of most flavored tobacco products in the state. The U.S. Supreme Court did not issue a decision in the case, rather they declined to take up an appeal. The 9th Circuit Court of Appeals had already held, in a separate case, that Los Angeles County could enforce a similar ban.
The appeal was lodged by R.J. Reynolds Tobacco Company, part of British American Tobacco plc, together with a coalition of other tobacco retailers and manufacturers. They contended that California's ban contravened the federal Tobacco Control Act — which they argued provided the FDA with regulatory powers but did not give individual states the authority to blanketly prohibit certain tobacco products.
The Big Tobacco companies asserted that the impugned law had "shut the doors" to one of the country's largest markets for flavored tobacco products, as California is the U.S.'s most populous state - and had outlawed menthol cigarettes, which had been legally sold for almost a century.
SCOTUS had previously refused an emergency request by R.J. Reynolds and their fellow challengers to temporarily hold the ban pending their appeal, after the law was approved in November 2022 by approximately 2/3 of Californian voters in a public referendum known as Proposition 31.
Massachusetts was the first U.S. state to ban the sale of all flavored tobacco products in 2019.
California Consequently
There are some exceptions to California's flavored tobacco ban. The law does not apply, for example, to the more costly variety of premium cigars ($12 or above), loose-leaf tobacco for pipe use, or tobacco for shishas/hookahs — which may only be sold in licensed retailers accessible exclusively to adults over the age of 21.
Penalties for breaching the law include quite significant fines and potential suspension or revocation of the vendor's tobacco retail license.
Despite these measures, the Los Angeles Times reported in November 2023, that San Diego-based researchers have noticed an upsurge in online sales of flavored tobacco since the ban's implementation. This strongly suggests that more robust regulation of e-commerce retailers may be required.
No Smoke Without Fire
The U.S. vaping market is currently worth an estimated $7 billion. Thousands of varieties of unauthorized fruit-flavored e-cigarette products continue to arrive on U.S. shores, predominantly from China. The pernicious health effects, particularly for minors, are extremely worrying. The FDA and CDC have reported that poison centers throughout the United States are receiving calls about e-cigarette emergencies, mostly involving kids under the age of 5.
The National Capital Poison Center has warned of the risks of nicotine poisoning for children - exacerbated by the prevalence of "smoke juice" (e-liquids) available in a tantalizing range of mouth-watering flavors.
It's hard enough to steer kids away from candy and junk food in the first place — it isn't hard to understand how flavors such as Blue Razz, Strawberry, Chocolate or Vanilla might easily lure children into nicotine addiction, and the panoply of ailments that can ensue.
Related Resources
- Third Circuit Snuffs Out Philadelphia Ban on Flavored Tobacco Products (FindLaw's Federal Courts)
- Is Synthetic Vape Nicotine Legal? (FindLaw's Law and Daily Life)
- Vaping and E-Cigarette Laws by State (FindLaw's Learn About the Law)
