Have you seen illegally sold vapes and e-cigs? The FDA, ATF, and other agencies are cracking down

10 June 2024- The U.S. Department of Justice (DOJ) and the U.S. Food and Drug Administration (FDA) today announced the creation of a federal multi-agency task force to combat the illegal distribution and sale of e-cigarettes.

Along with the FDA and the Justice Department, the task force will bring together multiple law enforcement partners, including the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the U.S. Marshals Service (USMS); the U.S. Postal Inspection Service (USPIS); and the Federal Trade Commission (FTC), to coordinate and streamline efforts to bring all available criminal and civil tools to bear against the illegal distribution and sale of e-cigarettes responsible for nicotine addiction among American youth. Additional agencies may join the task force in the coming weeks and months. 

“Unauthorized e-cigarettes and vaping products continue to jeopardize the health of Americans – particularly children and adolescents – across the country,” said Acting Associate Attorney General Benjamin C. Mizer. “This interagency Task Force is dedicated to protecting Americans by combatting the unlawful sale and distribution of these products. And the establishment of this Task Force makes clear that vigorous enforcement of the tobacco laws is a government-wide priority.” 

“The Justice Department is committed to enforcing the laws that prevent the sale and distribution of unlawful e-cigarettes,” said Principal Deputy Assistant Attorney General Brian Boynton, head of DOJ’s Civil Division. “We will work closely with our Task Force partners to address this crisis with all of the enforcement tools available to us.” 

“Enforcement against illegal e-cigarettes is a multi-pronged issue that necessitates a multi-pronged response,” said Dr. Brian King, director of the FDA’s Center for Tobacco Products. “This ‘All Government’ approach – including the creation of this new Task Force – will bring the collective resources and experience of the federal government to bear on this pressing public health issue.”  

This all comes, it should be said, as the FDA has lifted a Market Denial Order against Juul Laboratories. While Juul is a legal vaping/e-cigarette product, they have not been able to conduct marketing campaigns since 2022. The company that manufactures flavored e-cigarette products in flavors of tobacco and menthol had their MDO reversed earlier this month. They had previously rolled out a line of flavors including mint, menthol, cool cucumber, mango, creme brulee, peanut and jam, apple crumble, apple cran, peach ginger tea, chestnut croissant, mimosa, and strawberry limoncello.

The 2023 National Youth Tobacco Survey found that about 2.1 million youths reported currently using e-cigarettes, which reflects a considerable decline from 5.3 million youth in 2019. However, 10 percent of high school students and almost five percent of middle school students reported currently using e-cigarettes, and more than one in four of those e-cigarette users reported daily e-cigarette use. Manufacturers, distributors and retailers market a wide range of products that appeal directly to school-age users, such as candy and fruit flavors, some of which come in devices designed to be easily concealed. 

Youth use of tobacco products in any form – including e-cigarettes – is unsafe. According to the CDC, nicotine poses unique dangers to young people. In addition to being highly addictive, nicotine can harm the developing adolescent brain, which continues to develop until about age 25. Young people who use nicotine may also be at risk for addiction to other drugs.   

To date, the FDA has authorized the sale of 23 specific tobacco-flavored e-cigarette products and devices. These are the only e-cigarette products that currently may be lawfully marketed and sold in the United States. To date, the FDA has issued more than 1,100 warning letters to manufacturers, importers, distributors and retailers for illegally selling and/or distributing unauthorized new tobacco products, including e-cigarettes, and has filed civil money penalty complaints against more than 55 manufacturers and 140 retailers for the manufacture and/or sale of unauthorized tobacco products. In addition, the FDA and the Justice Department have obtained injunctions against six manufacturers to stop them from manufacturing and selling unauthorized e-cigarette products.

The federal task force will focus on several topics, including investigating and prosecuting new criminal, civil, seizure and forfeiture actions under the PACT Act; the Federal Food, Drug, and Cosmetic Act (FDCA), as amended by the Family Smoking Prevention and Tobacco Control Act (TCA); and other authorities. Violations of these statutes can result in felony convictions and significant criminal fines and civil monetary penalties. They can also result in seizures of unauthorized products, which can help to make illegal e-cigarettes less accessible, including to young people. Through their participation in the task force, USMS will help the FDA and the Department effectuate seizures of unauthorized e-cigarettes within the United States.  

The Justice Department is also collaborating with ATF and USPIS on potential criminal and civil enforcement actions under the Prevent All Cigarette Trafficking Act of 2009 (PACT Act). The PACT Act requires online sellers of ENDS products to register with ATF and to verify the age of purchasers both at the point of sale and the point of delivery, as well as to comply with tax collection provisions and state and local laws. The task force announced today will support these actions and coordinate enforcement strategies the FDA and the Justice Department are working on with multiple agency partners.

Finally, the Federal Trade Commission (FTC), which releases reports about cigarette, smokeless tobacco and e-cigarette marketing, and enforces various statutory and regulatory prohibitions on false and misleading advertising, will support the activities of the task force, including by sharing its knowledge about the marketplace for vaping products.