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FDA E-Cig Restrictions in C-Stores Imminent

NATO says agency does not have authority to ban products from one class of trade
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WASHINGTON – In yet another in a series of declarations regarding potential federal action tied to the sale of flavored electronic cigarettes, the head of the U.S. Food and Drug Administration (FDA) publicly declared the agency’s plans to pull most flavored, pod-style vaping devices from most convenience stores and gas stations, according to the The Wall Street Journal.

Scott Gottlieb, FDA commissioner, told the Journal that additional moves would require strict age-verification controls for online sales. The agency is expected to announce all of these actions as early as the second week of November, the newspaper reported.

Once announced, the FDA’s new policy will take effect immediately, the Journal said, and will apply to cartridge-style products, not to open-tank-style systems.

E-cigarette products in mint, menthol and tobacco flavors will be allowed to remain in all retail outlets for now but could be restricted later if youth use continues to increase, the report said.

The targeting of convenience and gas stations appears to go against the agency’s legal authority, said officials with a national tobacco-retailing association. In a webinar held Nov. 8, Tom Briant, executive director of Lakeville, Minn.-based NATO, said the Family Smoking Prevention and Tobacco Control Act, which gives the FDA Congressional authority over certain aspects of tobacco advertising and promotion, limits the agency in certain ways. “[It] prevents the FDA from [forcing] restrictions that would prohibit the sale in a face-to-face transaction by a specific category of tobacco outlets,” Briant said in the webinar. “The FDA could not ban the sale of tobacco product in just c-stores and only allow them vape shops.”

Briant said the association has tried to set up a meeting with the FDA commissioner but was told such a meeting was not possible. He was asked to submit written comments to the agency.

Bonnie Herzog, managing director of consumer equity research for Wells Fargo Securities, New York, said she believes the FDA is close to taking such action, because Gottlieb has called the rise in use of e-cigarettes among youth an “epidemic.” 

While Herzog expects the manufacturing community, distributors and retailers to respond vocally against the move, “we doubt they will be able to cause the FDA to course-correct in any meaningful way,” she said in a research note.

 

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