A group of Democratic senators are taking on the sale of illegal vape products. They sent letters to 22 top convenience-store chains and wholesalers, reminding them of their obligations and legal liability under the Family Smoking Prevention and Tobacco Control Act and highlighting “the apparent widespread violations of federal law that prohibits the sale and distribution of unauthorized tobacco products at convenience stores, gas stations and other retail outlets across the nation.”
The letters do not allege any specific violations on the part of the companies, but they are intended as a reminder to the recipients and the industry as a whole to comply with the law.
Under the law, no tobacco product—including electronic nicotine delivery systems (ENDS) such as e-cigarettes or vaping devices, including those containing nicotine not made or derived from tobacco—may legally enter the market for sale without having first received authorization by the Food and Drug Administration (FDA) that the product is “appropriate for the protection of public health.”
The senators, led by Senate Majority Whip Dick Durbin (D-Illinois), chair of the Senate Judiciary Committee, included Sens. Ron Wyden (D-Oregon), chair of the Senate Finance Committee; Bernie Sanders (I-Vermont), chair of the Senate Health, Education, Labor and Pensions Committee; Sherrod Brown (D-Ohio), chair of the Senate Banking, Housing and Urban Affairs Committee; and Richard Blumenthal (D-Connecticut), chair of the Senate Permanent Subcommittee on Investigations,
“Every single e-cigarette or vaping product that is not on this list was not authorized by FDA, making such products illegal and adulterated and misbranded under Sections 902 and 903 of the Federal Food, Drug and Cosmetic Act,” the senators wrote. “Companies distributing or selling any such unauthorized products are subject to enforcement penalties by the FDA, which may include a civil monetary penalty or no-tobacco-sale order. To date, FDA has issued more than 440 warning letters and 88 civil monetary penalties to retailers for the sale of illegal e-cigarettes and vaping products. Retailers and distributors engaged in the sale or distribution of such unauthorized products risk liability.”
Despite these requirements, a trip to many convenience stores, gas stations and other retail outlets reveals “scores” of unauthorized e-cigarettes and vape products for sale, they said.
Most retailers who received letters from the senators have received warning letters and civil monetary penalties from FDA within the past year for selling e-cigarettes to underage purchasers, according to the senators. A 2022 independent report from the Reagan-Udall Foundation highlighted the potential value to enhancing communication and enforcement actions with retailers, wholesalers and distributors who are handling illegally marketed products. These illegal sales also pose a tremendous public health threat, they said.
“[We] are working with the Department of Justice, FDA and other agencies to ensure adequate enforcement of federal laws to protect public health and prevent the unauthorized sale of tobacco products,” the letter continued. “We strongly encourage your company to ensure compliance with federal laws to prevent youth use of harmful tobacco products and protect your company from liability.”
Last month, Durbin urged the FDA to use its authority to protect children from the dangers of vaping as the agency continues to miss and delay deadlines in a letter to FDA Commissioner Robert Califf. Durbin has repeatedly criticized FDA for its long-overdue review of premarket tobacco product applications (PMTAs) from e-cigarette manufacturers, which had a federal court deadline of Sept. 9, 2021. FDA has missed that court-ordered deadline by 29 months as unauthorized e-cigarettes “flood the market and addict America’s children,” the senators said.
Texts of the letters to:
- 7-Eleven can be found here.
- Circle K Stores Inc. can be found here.
- Casey's General Stores Inc. can be found here.
- Murphy USA Inc. can be found here.
- EG America can be found here.
- GPM Investments LLC can be found here.
- bp America can be found here.
- Chevron/ExtraMile Convenience Stores LLC can be found here.
- Wawa Inc. can be found here.
- QuikTrip Corp. can be found here.
- Kwik Trip Inc. can be found here.
- Sheetz Inc. can be found here.
- Pilot Co. can be found here.
- Love's Travel Stops & Country Stores Inc. can be found here.
- RaceTrac Inc. can be found here.
- Royal Farms can be found here.
- Amcon Distributing Co. can be found here.
- Atlantic Dominion Distributors can be found here.
- Core-Mark can be found here.
- McLane Co. Inc. can be found here.
- Imperial Trading Co. LLC can be found here.
- H.T. Hackney can be found here.
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