Fed ban on flavored vape products expected soon, menthol and vape stores may be spared

Federal regulators are expected to announce a ban on electronic cigarette flavors other than tobacco and menthol within days, although it's unclear if mint flavors will be allowed or reformulated as menthol. 

Another possible exemption could be vaping products sold in vape stores rather than convenience stores, which is where the under-aged youth who are the focus of the ban often shop.

In March, former Food and Drug Administration Commissioner Dr. Scott Gottlieb proposed banning flavors other than tobacco in convenience stores, but said more would have to be done if youth vaping rates continued to rise. He said this week e-cigarette company Juul could rename its mass produced mint flavor menthol, but noted the company is facing so much scrutiny it might decline to do so.

On Wednesday, White House senior counselor Kellyanne Conway suggested regulators don't have authority over vape stores. Gottlieb had no comment on Conway's statement, but a group of medical and advocacy groups condemned such an exemption.

"If vape shops are allowed to continue selling flavored e-cigarettes, kids will find ways to obtain them," said a Wednesday statement by the American Academy of Pediatrics, Campaign for Tobacco Free Kids, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association and Truth Initiative.

President Trump announced in September flavors other than tobacco would be banned, prompting a torrent of lobbying from pro-vaping groups and users. As the Administration appeared to soften on an outright ban, opponents of vaping also stepped up their vocal opposition to such a move. 

The action comes amid a nationwide outbreak of more than 1,600 cases of vaping-related lung injuries resulting in at least 34 deaths. Vaping products containing THC, the psychoactive ingredient in marijuana, account for the vast majority of cases.

A sign of the imminent ban announcement came Monday, when the Office of Management and Budget said it concluded its review of the rule and cancelled upcoming meetings with industry and consumer interests. Conway also said an announcement was coming soon.

On Tuesday, the FDA and Centers for Disease Control and Prevention published findings highlighted in September when Trump and Health and Human Services Secretary Alex Azar announced the planned ban. E-cigarette use among high school students more than doubled from 2017 to 2019 to 27.5%. About 5.3 million middle and high school students used e-cigarettes this year, up from 3.6 million in 2018. 

Another study, also published in the Journal of the American Medical Association, found after Juul stopped selling mango and other flavors in November, high school students simply switched to mint.

"These findings underscore why the Trump Administration must stand strong and implement its plan to clear the market of all flavored e-cigarettes," said Matthew Myers, president of the Campaign for Tobacco Free Kids. "If menthol or any other flavors are left on the market, the evidence is clear that kids will move to them and this epidemic will continue." 

Gregory Conley, founder and president of the American Vaping Association, which opposes a flavor ban, said it would have little effect on youth vaping.  

"Young people are not using Juul because of the flavors," said Conley. "They are using it for the strong nicotine hit, so even a ban on menthol would be unlikely to deter risk-seeking youth from continuing to experiment with the products."

Juul and most other companies that sell e-cigarettes with already filled cartridges have menthol flavors, he noted.

"It's just not as good as mint, so not a lot of people use it when mint is available," said Conley. 

The FDA and CDC noted cigarette smoking among high school students is at an all-time low, but vaping has reversed the progress made in the overall decline in youth tobacco use. The liquid in e-cigarette cartridges comes from tobacco and is highly addictive. 

Conway discussed the matter Wednesday morning telling reporters, "The only thing that's really changed from the first lady's original tweet on Sept. 9 is that the data are much more harrowing and concerning than we would have suspected." 

She then made a distinction between vaping and electronic cigarettes. "I think we should all stop using vaping and e-cigarettes interchangeably. They are different."

Conway also appeared to suggest vape shops might be exempted because regulators don't have authority over them. 

“So HHS has, and FDA have jurisdiction over cigarettes and e-cigarettes under the Tobacco Control Act. They do not have jurisdiction over vaping and vape shops, for example," she said. "So, if we’re talking about e-cigarettes, the President, yes, he’s been discussing this with his team and he will, or the HHS, will make an announcement soon."

In their Wednesday statement, the health and advocacy groups said exempting vaping shops would be "a capitulation to the e-cigarette industry at the expense of America’s kids and it will not stem the worsening youth e-cigarette epidemic." They cited a study in JAMA Pediatrics earlier this year that reported California vape shops were less likely to verify purchasers' ages than other retailers. 

Any possible exemptions could undermine the effectiveness of a flavor ban, said Dr. Josh Sharfstein, former FDA principal deputy commissioner and now a Johns Hopkins University public health professor.

"The role of flavors for youth is extremely important given this incredible explosion of youth use," said Sharfstein, also director of the Bloomberg American Health Initiative at Johns Hopkins. 

Conway drew a bright line between enforcement and the age of users. 

"The demarcation is really kids and adults," said Conway. "And we're very focused on the burgeoning health care crisis among kids."

Contributing: John Fritze