By John MacIsaac
In November 2018, the Food and Drug Administration (“FDA”) will be rolling out restrictions on accessing vaping and e-cigarette materials for teens and young adults. The restrictions are thought to tackle only convenience stores and gas stations, with big stores like Wal-Mart being exempt from the FDA restrictions. While official statements regarding the motivation behind these restrictions have not been confirmed, the restrictions come at a time when the United States is seeing an increase in vaping and e-cigarette usage among teenagers. Health officials from the American Medical Association, among other national health groups, have expressed concerns about the use of these materials by young adults. The FDA needs to tackle youth consumption of these products, while not limiting the product’s availability to the point of dissuading adults who are trying to quit smoking by using e-cigarettes.
What are E-cigarettes? And who is using them?
We have all been unfortunate enough to be waiting for the bus or standing outside a bar with friends when a Mr. Juul (pronounced like “Jewel”) comes around. Who is Mr. Juul you may be asking? Why it’s simply the man who has never smoked a cigarette in his life (because they’re gross and terrible for you) but whips out what looks an extended USB drive, and puffs a cloud of mint that is anything but discreet. Juul’s are one of the more popular vaping platforms that have gripped fraternities and dive bars alike by storm. The device is slender, sleek, and takes disposable cartridges of different flavored liquid (or more grossly referred to as vape juice), that becomes a gaseous vapor when the battery-operated device heats the liquid when the user inhales.
Innocent enough in its presence to look cool — but not enough to give into nicotine like our parents before us — among twenty-somethings, the vaping craze also attracted adults who were smokers, but needed a better way to quit than traditional therapy groups and patches. E-cigarettes give the relief that comes with the motions and mannerisms of smoking with virtually none of the harmful side effects (some cartridges and liquids have been found to be harmful to users, but studies are still underway). Smoking habits among adults have dropped thanks to vaping shops and companies like Juul.
However, a younger crowd is also taking an interest in the readily available fad: teenagers. High schoolers can easily walk into a gas station or convenience store and purchase the device and flavored cartridges. Legally speaking, Juuls are seen as a tobacco product by the FDA, so retailers should not be selling these products to individuals under the age of eighteen, or twenty-one in some states. Whereas the e-cigarette market is not totally regulated under the FDA because of its inclusion of tobacco and non-tobacco products (like some Juul cartridges). E-cigarettes have not yet been fully covered by existing tobacco regulations and restrictions. The restrictions are increasing as young people are pursuing Juuls and other e-cigarettes and with health officials expressing concern that using e-cigarettes at a young age leaves high-school-aged individuals more likely to pursue tobacco products because of the more youthful advertisement campaigns, and normalization of “smoking.”
What the New Regulations Mean, and Where Can We Go From Here
As stated before, the FDA has had restrictions in place for products like e-cigarettes. Much like their classification as a tobacco product, the restrictions on e-cigarettes are loose and do not completely cover the market that has expanded exponentially in the past three to five years. What can be done to prevent youth access to these products and curb the trend of e-smoking among teenagers? The FDA should respond with blanket restrictions like those placed on cigarettes, cigars, and chewing tobacco. Restricting sales to those only 18 years old (or 21, depending on the state) or over would inevitably lead to a drop in sales and usage among teenagers, while still allowing adults to purchase them legally. Experts rightfully weigh in with the reality that many parents fear: their teenager “knows a guy” and would purchase the device and cartridges from a third party to skirt around the legal barriers in a convenience store.
While blanket restrictions are a good step in the right direction, teenagers will find a way to get the e-cigarettes regardless of the legality behind it, the restrictions would not be enough. The exposure teenagers receive from advertisements and the normalized appearance of puffing among their peers would need to be counteracted with education from health care providers and in high schools to highlight the future risks of e-cigarettes. Restrictions on advertising have not been incorporated, but Juul has opted to remove advertisements that show a more youthful crowd enjoy their products. Juul has replaced them with models that reflect an older demographic as a way to prevent the normalization of Juuls among teenagers.
To combat teen and youth’s use of cigarettes there is also the proposal to remove e-cigarettes and vaping materials from convenience stores and gas stations. The proposal raises a few issues that need to be looked at more carefully. First, the restrictions leave out stores like Target, Wal-Mart or grocery chains that sell tobacco products. They also leave out brick and mortar stores that specialize in vaping materials, and the manufacturer’s websites. As someone from the Deep South living in Boston now, the chief difference I noticed when moving up to Boston was the lack of Wal-Marts in the immediate area; although there are a number of Wal-Marts readily accessible in Western and Northern Massachusetts. In Florida, there are a large number of tobacco-selling Wal-Marts that are dispersed around the numerous gas stations and convenience stores that also sell these products. In a Florida town like mine, getting these products would not be any more difficult. Second, the restrictions on where these products can be sold touch on interstate commerce, and the rights of the producer to have their product sold where they want. The FDA would need to provide a compelling interest that significantly outweighs the interests of the producer to justify the restrictions and removal of these products from gas stations and convenience stores. Determining the validity of this compelling interest in teen and youth’s health from e-cigarettes is complicated by the limited amount of research that has gone into e-cigarette and vaping usage among teenagers, due to its newly found popularity. Finally, the FDA needs to come down firmly and cohesively with a classification for e-cigarettes that either assimilates them into general tobacco products or distinguishes them from tobacco products. Either way the FDA needs to ensure that the entire market of e-cigarette products is covered to avoid the precarious tightrope of balancing interests that is occurring now.
John MacIsaac is a 2L day student and staff member working on a note discussing the policy conflicts of the cutting on United Nations Relief and Works Agency funding in Palestine with international law. John interned with the Massachusetts Bay Transportation Authority Law Department and is interested in criminal law and national security law.
Sources:
https://www.theatlantic.com/health/archive/2018/11/teen-vaping-fda-flavor-limits/575542/
https://truthinitiative.org/news/where-are-kids-getting-juul