Lawmakers and public health groups have pushed for years for a government regulatory crackdown on e-cigarettes, worried about the possibility of teens getting hooked.
But it wasn’t until recently, when a serious, mysterious vaping-related lung illness took hold, that they really started getting somewhere. The problem even drew the attention of first lady Melania Trump, who sat beside President Trump in the Oval Office as he declared that “people are dying with vaping.”
Suddenly, the usually anti-regulation Trump administration declared it would pull flavored e-cigarettes from the market. House committees held hearings on the problem, and the full House passed, by voice vote, a bill that would make mail couriers check people’s ages when delivering e-cigarettes. Even Republicans called for the Food and Drug Administration to clamp down, and a handful of states moved to outright ban vaping products.
As all this was going on, there were, confusingly, two underlying developments: Government data showed more and more teens were using e-cigarettes, and, separately, it became increasingly clear that ingredients or pieces used in black-market vapes containing THC, the high-inducing chemical in marijuana, were likely the culprit behind the lung illnesses.
It’s unlikely that the data about teen use alone, showing that an estimated 4.1 million high school students and 1.2 million middle school students are using e-cigarettes, would have spurred as vociferous of a reaction.
“The fact that people are dying has created a greater sense of the need for urgent action across the board,” acknowledged Matthew Myers, president of the Campaign for Tobacco-Free Kids. “The fact that people are dying and we don’t know the answer means that every parent is terrified that their kid is at risk. It means to political figures that they will be held accountable if they don’t take strong action.”
For the roughly 10 years e-cigarettes have been available, there has been tension between keeping the devices from teens and also making them available to adults who want to quit smoking. Government officials have feared that overly aggressive regulation could lead people to turn back to traditional cigarettes, which are linked to the deaths of 480,000 people a year. Officials also have to consider some regulations could worsen the spread of the deadly illness or fail to address it altogether.
“Obviously, we’re fighting on two main fronts,” said Paul Blair, director of strategic initiatives at Americans for Tax Reform, which opposes the flavor ban. “Is the objective to solve the current crisis as it relates to people dying and having respiratory and lung issues, or is the top objective to reduce the number of people who use nicotine? They’re two different policy objectives.”
Public health groups claim the devices, which heat nicotine, are meant to entice youths by featuring flavors such as “gummy bear,” “cotton candy,” and “Skittles.” They want products to undergo FDA review and face other restrictions before going to market. They also note that even for adults, the long-term consequences aren’t known and probably won’t be for many decades.
Defenders of e-cigarettes say regulators shouldn’t be so quick to go after products sold in convenience stores and vape shops. They argue that adult smokers need alternatives, specifically those that taste nothing like tobacco, and worry people will turn to the black market. To curb teen use, they recommend outlawing certain forms of advertising, banning sales by third-party websites, prohibiting sales in bulk, and increasing the legal vaping age from 18 to 21. To curb lung illnesses, they believe Congress should focus on THC, which is mostly unregulated.
“Tough regulation of nicotine vaping products will do nothing to stop drug dealers from selling THC-contaminated products,” said Greg Conley, president of the nonprofit American Vaping Association.
The e-cigarette industry has few allies in Congress, but it is also up against a much more fundamental legal reality. Congress and federal agencies can much more easily regulate e-cigarettes than marijuana, which, despite being allowed recreationally in 11 states and the District of Columbia, is still illegal at the federal level. In contrast, Congress gave the FDA the authority to regulate nicotine in the 2009 Tobacco Control Act.
Marijuana, just like heroin and LSD, is a Schedule 1 drug, which means the government has deemed it has a high potential for abuse and is not allowed for medical purposes. To regulate marijuana, Congress would first need to deschedule it, and at the moment, it doesn’t have the votes to do so.
Proponents of marijuana legalization say the best way to address the problem is not just to deschedule marijuana but to allow the FDA to sign off on the products’ safety. The FDA should involve the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau, which would collect taxes and fight the illicit market. Even with some states legalizing marijuana and then regulating the products to a certain extent, people still buy drugs from black-market sellers because they’re cheaper.
“Regulated products are not having the same problems,” Morgan Fox, spokesman for the National Cannabis Industry Association, said of the lung illness outbreak tied to vaping. “Prohibition is what is pushing people into the illicit market.”
But Dr. Scott Gottlieb, who was FDA commissioner under Trump until April, suggested that he thought marijuana dispensaries deserve at least part of the blame, saying they “popularized the vaping of these products in a lab.”
“The states should never have allowed dispensaries to sell THC vaping products,” said Gottlieb, who is now a resident fellow at the conservative American Enterprise Institute.
In the absence of congressional action, he thinks the FDA may be able to fight against some of the THC products linked to the illness by trying to regulate the devices’ hardware. Scientists still aren’t sure whether the heating tool, cartridges, oil, or a combination of these, is causing the lung illness.
Gottlieb said he thought the issues of lung illnesses and teen vaping had been conflated. As FDA commissioner, he oversaw the proposal that would obligate retailers to sell flavored e-cigarettes in parts of their stores that are off-limits to minors.
“It’s unfortunate because it really is a youth nicotine problem with the e-cigarettes … And the issue with the THC is a separate issue, which can be dealt with in regulation, but it’s different regulations,” Gottlieb said.
Part of the confusion stems from the fact that government agencies initially released conflicting guidance. The Centers for Disease Control and Prevention urged people not to use e-cigarettes at all, while the FDA told people not to vape with THC. Now the CDC still advises people to avoid e-cigarettes but stresses people should “particularly” avoid products containing THC, especially those sold on the streets.
One of the reasons the CDC has been careful not to blame marijuana alone is because 11% of people who got sick are still reporting that they only vaped nicotine. It’s possible, however, that people either didn’t know what they were vaping or that they didn’t want to admit to using marijuana. While officials aren’t going after users of the products, they have warned that they will take action against anyone selling contaminated products for profit.
As of November, 2,051 people have gotten sick, and, of those, 40 have died. The illnesses are incredibly severe, sending people to the hospital for intensive care to treat chest pain, nausea, and breathing problems. Some patients required re-admittance to the hospital after discharge, and officials suspect many of them could have lifelong lung damage.
The Trump administration’s actions have left few satisfied, and are likely to result in lawsuits. Meanwhile, regulations that miss the mark risk not only thwarting years of progress on lowering smoking rates in the United States, but could cause even more people to get sick.
“That’s an unintended consequence: You will force millions of consumers to go to the black market and give drug dealers a huge opportunity to make a lot of money selling illegal products to people who are addicted to nicotine,” said Blair.
