Senate Judiciary Committee Grills FDA, DOJ on Lack of Enforcement Regarding Illegal E-Cigarettes

Senators push for answers on why unauthorized vaping products are still widely available
Washington, DC
Photograph: Shutterstock

The U.S. Senate Judiciary Committee conducted hearings on Combatting the Youth Vaping Epidemic by Enhancing Enforcement Against Illegal E-Cigarettes on Wednesday in Washington, D.C.

Democrats and Republicans on the Senate Judiciary Committee grilledthe Food and Drug Administration’s (FDA) Center for Tobacco Products Director Brian King and the Department of Justice’s (DOJ) Deputy Assistant Attorney General Arun Rao of the Civil Division’s Consumer Protection Branch on the lack of enforcement regarding illegal e-cigarettes.

Senate Majority Whip Dick Durbin (D-Illinois), who has been highly vocal to combat unauthorized e-cigarettes, chaired Wednesday’s hearing.

I simply do not understand how the FDA and our DOJ have permitted thousands of products to remain on store shelves when their manufacturers have not received authorization, or, in some cases, even filed an application while these two agencies sit on their hands,” Durbin said in his opening remarks at the hearing.

During the hearing, Durbin presented a photograph taken by one of his staffers at a vape shop. The products in the photo included watermelon bubblegum and other flavors, Durbin said, adding that “these illegal products, clearly designed for kids by their flavors, are being sold less than one mile from the FDA’s headquarters.” Durbin then asked the panelists “how is that allowed to happen?”

At the hearing, King emphasized that the “sheer volume of this product landscape requires time to ensure that we conduct scientifically and legally legally defensible reviews of the 27 million applications."

Durbin pushed back on this response by saying, it’s not the FDA’s burden.

“The original law, the Tobacco Control Act, puts a burden of proof on the manufacturer to prove that their product is safe for public health,” Durbin said.

King said the applications are “substantial” and the FDA has “hundreds of scientists” that review these applications.

On Monday the DOJ and FDA createdfederal multi-agency task force to combat the illegal distribution and sale of e-cigarettes.

At the hearing, when asked if the task force was planning to use civil and criminal penalties, Rao said “we’re exploring all tools.”

Voicing her frustration regarding this response, Marsha Blackburn (R-Tennessee) said “I think it's disappointing to hear you kind of talk in circles about what you are planning to do, but you haven't established a plan, and you're not certain what your way forward is going to be.”

In April the FDA, in collaboration with the DOJ, seized 45,000 units of unauthorized e-cigarette products, estimated to be valued at around $703,000, from a warehouse in Alhambra, California, believed to be owned by several California-based distributors.This action represents the first time the FDA and DOJ have seized tobacco products in coordination with the U.S. Marshals Service.Products included Elf Bar/EB Design, which is the most used brand among youth e-cigarette users, according to the 2023 National Youth Tobacco Survey. 

The hearing also included a second panel that included testimony from Tony Abboud, executive director of the Vapor Technology Association; Yolanda Richardson, president and CEO of Campaign for Tobacco-Free Kids; Dr. Susan Walley, immediate past chair of the section on nicotine and tobacco prevention and treatment and currently at Children’s National Hospital; David Spross, executive director of the National Association of Tobacco Outlets (NATO), and Josie Shapiro, a high school student from Lincoln High School in Seattle, Washington.

Durbin noted that major tobacco companies declined to participate.

To date the FDA has authorized 23 tobacco-flavored e-cigarette products and devices, which are currently the only e-cigarette products that may be lawfully marketed and sold in the United States. Information on tobacco products that may be legally marketed in the United States is available in the agency’s new Searchable Tobacco Products Database.

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