Despite FDA ban on flavored vapes, sales abound in Austin: 'Every retailer I know just sells'
Flavored vape products, which the FDA banned five years ago amid an uptick in underage vaping, are continuing to be sold in shops across Central Texas.
Although the Food and Drug Administration in 2020 banned all fruit and mint vape flavors, excluding menthol and tobacco, the sale of imported flavored products, almost exclusively from China, has continued across the country.
In Austin, a random sampling of used and discarded vapes found that 98.9% came from the East Asian country.
WSPM Group, the international firm that conducted the vape study for Altria, known for its Marlboro brand of cigarettes, collected 1,500 discarded vapes from 32 collection sites, primarily public trash cans, across the Austin area from as far north as Cedar Park and as south as Manchaca.
Kaab Malik, who owns iVape ATX Austin, conceded that “every retailer I know just sells (flavored products) under the table.”
“This is just the new way of consuming nicotine,” Malik said. “You're not going to stop people from consuming nicotine. That's just thousands of years old. You know what I'm saying? The Native Americans used to peace pipe it up.”
In the years after the ban, the number of different kinds of vapes sold in the U.S. tripled, according to The Associated Press. In the Austin area, the sampling of discarded vapes found that 99.2% were flavored and only 0.8% tasted like tobacco or original, according to the WSPM's study published in October.
Virginia-based tobacco giant Altria has a stake in the vape industry. It bought 35% of American e-cigarette company Juul for $12.8 billion in 2018 but sold its stake in the company at just a $250 million evaluation in 2023, according to the Financial Times. At the time, Juul had just settled over 5,000 lawsuits for $438.5 million over its alleged contribution to underage vaping and many of its popular flavors — like fruit medley, mango and creme brulee — had been banned. Shortly after the sale, Altria moved back into the vape market, acquiring NJOY, a different American manufacturer, for around $2.75 billion.
According to Tomer Touati, WSPM's CEO, the international firm has conducted similar studies on discarded vapes and cigarettes across the United States and Europe since its founding in 2002. He told the American-Statesman that while Altria funded the study, WSPM is an independent-owned, third-party entity that has conducted surveys for numerous clients, including British American Tobacco and Japan Tobacco International, two of Altria’s competitors.
Prominent Chinese brands such as Geek Bar and Lost Mary, whose products make up a combined 48.2% of the vapes found in the Austin study, are not FDA-approved as the federal agency looks to crack down on imported flavored vape products. Under the Family Smoking Prevention and Tobacco Control Act, which was signed into law in 2009, the FDA must approve any new tobacco product before it can be legally sold in the U.S.
In a December letter to Vape Wholesale USA, a prominent domestic distributor of vape products, U.S. Rep. Raja Krishnamoorthi, D-Illinois, then the ranking member of the House Select Committee on the Strategic Competition between the United States and the Chinese Communist Party, expressed concern about illicit Chinese products flooding American shops "amid an unacceptably high level of youth e-cigarette use" in the U.S.
"I write to request information regarding your role in distributing illicit PRC vapes that do not appear to comply with U.S. law," Krishnamoorthi wrote in his letter. "In 2022, the PRC banned flavored e-cigarettes from being sold within China. However, the PRC did not similarly prohibit the export of these dangerous products to the U.S. or other jurisdictions.”
Robert Jackler, a Stanford University emeritus professor and founder of an interdisciplinary research group studying the effects of tobacco advertising, told Wired that after China's ban on e-cigarettes in 2022, Chinese suppliers began focusing on marketing their products directly to overseas customers, cutting out many American companies that had manufactured their products in China.
In 2023, the Chinese vaping sector was estimated to be worth $28 billion, with the U.S. accounting for nearly 60% of the country’s vape exports, the AP reported. The packages containing these illicit products are routinely labeled as “battery chargers, flashlights and other items” to clear U.S. customs, according to the AP.
Adam Hoffer, director of excise tax policy at the Tax Foundation, a Washington-based nonprofit think tank, believes this Chinese influx of flavored products was partially made possible by the domestic prohibition on the sale of flavored vapes.
“When the FDA made it illegal to sell and distribute any of these flavored products, then what happens is you have this ripe opportunity for illicit products to come onto the market,” Hoffer told the Statesman. “The clear solution here is right in front of us. It's authorizing flavored products to be sold in the US by companies that are willing to play by the rules. Again, this is a large and quite profitable market, and there are several manufacturers willing to play by all the legal rules.”
Touati, WSPM's CEO, echoed Hoffer, citing data from surveys his company has conducted around the world.
“This is something that we've seen not only in the (United) States, and specifically, not only in Austin,” Touati said. “We've seen it in many places in the (United) States. We are also seeing it in Europe where it is almost the same situation. In countries that banned flavored products, you see 99, 98% of the products found on the street are Chinese flavored products. So it's not by chance or a coincidence.”
Malik, the West Campus-area vape shop owner, however, defended Fifty Bar, a brand his shop sells that claims to be “the first disposable vape built in the USA and filled with American-made e-liquid” on its website.
“They're the only ones that source their ingredients, like the juice part, here in the U.S., and that's this Fifty Bar,” Malik said moments after taking puffs from a Fifty Bar disposable vape. “That's the only one, and I can kind of tell the difference. It seems (like a) better product, you know what I mean? I noticed out of all the ones that I will try, I'll kind of revert back to the Fifty Bar just because I don't assume quality.”
Despite the brand potentially being manufactured domestically, the FDA sent a warning letter to its owners, including Austin-based Beard Vape Co. LLC, which lost its right to operate in Texas, saying it had not obtained a “premarket authorization order” before hitting the market.
“FDA has determined that your firm markets new tobacco products in the United States that lack premarket authorization," the letter said. "All new tobacco products on the market without the statutorily required premarket authorization are marketed unlawfully and are subject to enforcement action at FDA’s discretion."
A case pending in the U.S. Supreme Court, FDA v. Wages and White Lion Investments, L.L.C., might have broad implications on the FDA’s jurisdiction in regulating the industry. However, seven federal appeals courts have sided with the FDA, and Supreme Court justices seem to be aligned with the agency’s regulatory authority.