By The Herald Editorial Board
For several years, advocates for the health of youths have been frustrated by the slow pace of federal and state oversight and regulation of e-cigarette and other tobacco products as they struggled to confront the “catch me if you can” innovation of vape product manufacturers, amid an epidemic rise in tobacco use among middle- and high-school-age youths.
Organizations such as Truth Initiative and the Campaign for Tobacco-Free Kids have compared it to a game of vaping whack-a-mole. As regulators would block one path to distribution of e-cigarettes and vape pens to underage users, makers would find a loophole to exploit.
That game continues courtesy of an industry that insists it’s simply offering a smoking-cessation alternative to adults, while at the same time it’s been busy developing new packaging, colors, flavors, formulations and social media marketing to sell an addictive and harmful chemical — nicotine — to children.
Briefly, here’s the problem with nicotine use by children and young adults, according to the Washington state Department of Health and the U.S. Food and Drug Administration:
Youths and young adults under the age of 18 are more likely to start using tobacco than adults; and nearly 9 of 10 adults who smoke started by age 18;
An estimated 104,000 youths in the state, alive today, will die prematurely because of smoking; and
The rise in use of vaping products among youths raises alarms because nicotine can adversely affect brain development and have long-lasting effects, including lower impulse control and mood disorders and can develop in them a difficult-to-break addiction to nicotine and tobacco products.
However, even as the game continues, state and federal officials have recently gotten in a couple good whacks.
The first good whack: Last week, Washington state Attorney General Bob Ferguson announced a $22.5 million settlement with Juul Labs — until recently the market leader in e-cigarette product sales — to end the state’s consumer protection lawsuit from 2020 that claimed Juul had targeted underage consumers and deceived consumers in general about the addictive nature of its products.
In acceding to the settlement, Juul admits no wrong-doing, the bitter aftertaste that’s typical of such agreements to end lawsuits. But along with the $22.5 million payment to the state, the e-cigarette maker must:
End all advertising that appeals to youths and stop much of its promotion on social media;
Accurately label products with their nicotine content and nicotine’s effects;
Follow state licensing requirements for retailers; and
Set up a “secret shopper” program, making at least 25 monthly spot checks of Juul retailers in the state to confirm the state’s law against sales to those under 21 is being followed.
To be fair, Juul in recent years has been at least somewhat responsive to state and federal concerns; read: lawsuits and threats of lawsuit. In 2019, it announced it was suspending its print, broadcast and online advertising in the United States. That same year it halted the sale of its fruit and dessert flavors — including mango, creme brulee and cucumber — that were seen as a significant lure for teen users.
Same game, different mole: Yet, even as Juul ducked those mallets, other vape pen makers popped up with their own fruit and candy-flavored products and new ways to escape regulation, including the current market leader, Puff Bar. Initially, Puff Bar sales initially got around FDA regulation because its blueberry, strawberry-banana and mango e-cigarettes were disposable, until the FDA in July 2020 determined that Puff Bar and other companies’ products had not applied for nor been provided authorization.
But again, Puff Bar ducked and popped up again, having found a loophole for synthetic nicotine, a laboratory product that isn’t derived from tobacco. The 2009 federal law that first gave the FDA oversight of cigarettes and other tobacco products referred only to tobacco-based nicotine, according to a recent Associated Press report. Puff Bar was back on the market with disposable flavored vapes and become the top choice among high-schoolers, sending Juul to the No. 4 spot.
The products’ synthetic source also allowed makers to hide behind a new marketing angle, claiming the e-cigarettes were “tobacco free,” “clean” and “pure,” implying that the synthetic nicotine was safer than tobacco-based products or even free of nicotine.
The second good whack: But as of last week, the “Puff Bar loophole,” too, is now closed. As part of last month’s spending bill in Congress, it also passed a law to give the FDA authority over all forms of nicotine, both that made from tobacco and the synthetic version. The law took effect last week.
The makers of synthetic nicotine vape pens now have about 60 days to file an application with the FDA for authorization of their products; and any product without authorization must be removed from sale within 120 days. But as pointed out in a Washington Post report in March, most makers may abandon the synthetic nicotine vape pens; they were developed as a response to the loophole and companies lack the scientific data likely necessary for FDA approval.
That data may be a while in coming. Truth Initiative reports that while there’s been robust research into tobacco and nicotine derived from tobacco, more research is needed to learn about the level of toxicity and effects of synthetic nicotine and the chemical methods and compounds used to produce it.
The score: While the moles keep popping up and the regulators keep swinging, there are signs that youths and young adults may be catching on to the realities of vaping and nicotine. The FDA’s most recent findings on youth tobacco use show that more than 2.55 million U.S. students — 9.3 percent — used e-cigarettes and other forms of tobacco in 2021, down from an estimated 4.5 million in 2020.
Similar numbers were seen in Washington State’s Healthy Youth Survey for 2021. Among 12th graders in the state, 15 percent reported using e-cigarettes or other tobacco products in 2021, down from 30 percent in 2020.
The FDA survey also found that nearly two-thirds of students who use e-cigarettes or other tobacco products reported thinking seriously about quitting, and 60 percent said they had quit for at least a day or longer in the past year.
Still, regulators and elected officials must keep watching for new products and marketing methods that attempt to latch on to new consumers and keep the ones they have.
That’s a whack-a-mole game that isn’t likely to end soon.
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