FDA, DOJ Widen Efforts to Combat Unauthorized Vape Sales

Interagency task force formed to emphasize ‘all-government’ approach
Vapor products
Photograph: Shutterstock

The U.S. Department of Justice (DOJ) and the Food and Drug Administration (FDA) have created a federal multi-agency task force to combat the illegal distribution and sale of e-cigarettes.

The interagency task force will include various agencies, including the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), U.S. Marshals Service, U.S. Postal Inspection Service and 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, vapes and other electronic nicotine delivery systems responsible for nicotine addiction among American youth, the FDA said on Monday. 

“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 Mizer. “This interagency task force is dedicated to protecting Americans by combating 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 federal task force will focus on several topics, including investigating and prosecuting new criminal, civil, seizure, and forfeiture actions under the Prevent All Cigarette Trafficking Act of 2009 (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.

The FDA said additional agencies may join the task force in the coming weeks and months.

“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 the 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.”

The FDA’s Center for Tobacco Products Director Brian King said enforcement against illegal e-cigarettes is a “multi-pronged issue” that requires a “multi-pronged response.”

“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,” King said. 

The unauthorized e-cigarettes appeal to youth, the FDA said, citing the 2023 National Youth Tobacco Survey that 10% of high school students and almost 5% of middle school students reported currently using e-cigarettes, and more than 1 in 4 of those e-cigarette users reported daily e-cigarette use.

“Curbing the widespread availability of illegal ENDS products is a top priority of the Justice Department’s consumer protection efforts,” said Deputy Assistant Attorney General Arun G. Rao of the Civil Division’s Consumer Protection Branch.

The DOJ is also collaborating with the ATF, U.S. Marshals Service, U.S. Postal Inspection Service and FTC on potential criminal and civil enforcement actions under the PACT Act, which requires online sellers of ENDS products to register with the 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 FDA said.

“The PACT Act is an important tool for preventing the unlawful sale of e-cigarettes to minors online,” said ATF Director Steven Dettelbach.

Senate Majority Whip Dick Durbin (D-Illinois), who chairs the Senate Judiciary Committee, in a letter last month requested King and Boynton, to appear on June 12 before Congress to discuss the topic of the sale of unauthorized e-cigarettes.

Yolonda Richardson, president and CEO at Campaign for Tobacco-Free Kids, on Monday said “this task force can be an important step in preventing youth use of e-cigarettes, which are endangering the health and well-being of young people.”

The FDA has taken steps to crack down on the increase of unauthorized e-cigarettes. On May 23, the FDA updated its import alert, which includes a red list of manufacturers, distributors and brands of vapor products that may be detained “without physical examination," the agency said. 

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 or sale of unauthorized tobacco products.

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