Despite reports to the contrary, the U.S. Food & Drug Administration (FDA) will not ban retail stores from selling fruit- and dessert-flavored e-cigarettes cartridges popular among teenagers.
Rather, the agency will try to force convenience stores, gas stations, and other retailers to limit sales of the devices to areas off-limits to minors.
“We’re not telling the retail stores you can’t sell them,” FDA Commission Scott Gottlieb told NBC News shortly after the proposal was announced on Friday. “If the establishments want to continue to sell these fruity flavored products, they’re going to have to put into place measures that will make sure they are not going to get into the hands of kids.”
While keeping the devices behind the counter won’t satisfy the FDA’s proposed regulations, Gottlieb suggested convenience stores or other brick-and-mortar outlets could continue to sell the flavored nicotine cartridges in a curtained-off area of the store.
Online retailers will need to take steps to verify a purchaser’s age.
Early last week, media leaks had suggested the FDA was going to limit sales of flavored vape cartridges to adult-only retailers.
That threat had already prompted JUUL Labs to pull its candy- and fruit-flavored nicotine pods – the most popular vaping brand among teens — from retail stores. However, the company suggested the products could return if stores began using age verification technology, including scanning customer IDs, to limit sales to adults.
The FDA’s decision to forgo a ban obviously disappointed public health advocates, who fear the regulations won’t prevent determined teenagers from getting their hands on the highly-addictive nicotine e-cigarette cartridges.
“Even with new sales restrictions announced today by FDA preventing flavored e-cigarettes from being sold at certain brick and mortar storefronts, teens will still find ways to access them,” Dr. Colleen Kraft, president of the American Academy of Pediatrics, said in a statement issued on Friday. “E-cigarette products that appeal to children have no business in the marketplace, period.”
Others faulted the FDA’s decision to exclude menthol- and mint-flavored nicotine cartridges, asserting they are also popular with teens.
Meanwhile, retail lobbyists are already threatening to take the FDA to court over the watered-down proposal.
“The Tobacco Control Act is clear that the FDA can’t discriminate against one type of retail outlet and that’s what they’re trying to do here,” said Doug Kantor, counsel to the National Association of Convenience Stores, told The New York Times. “There is a very good chance this will end up in litigation and lawyers are looking at that right now.”
E-cigarette companies are also expected to push back, despite statements from JULL Labs and others that seemingly support curbing vaping among minors.
“JUUL is smart enough to try to use FDA actions to falsely create an impression of it as a caring, responsible company,” a representative for the Campaign for Tobacco-Free Kids told NBC News. “A caring responsible company would never have run the social media campaign that JUUL ran and continued to run until there began to be a public outcry.”