Opinion

In this April 11, 2018, file photo, a high school student uses a vaping device near a school campus in Cambridge, Mass.

While the Food and Drug Administration is preparing to prohibit the sale of menthol cigarettes as early as this fall, the agency is failing to get the products they’ve already banned off the streets.

Across the country, disposable vapes and synthetic nicotine products fill the shelves of gas stations, convenience stores and smoke shops, yet many Americans don't know that 95% of these products are illegal.

In 2020, the Trump administration banned flavored e-cigarettes, but left a loophole allowing disposable products to stay on the market. However, all flavored tobacco products need FDA approval if they were brought to market after Aug. 8, 2016, which is when Congress extended the agency's authority over tobacco products. As a result, a vast majority of flavored products are currently sold illegally, but the FDA has done little to enforce its own rules.

Companies like Puff Bar are a favorite among younger demographics, with over 50% of young e-cigarette users using disposable vapes. Yet beyond a letter threatening enforcement, the FDA hasn't taken concrete steps to force these products off the market. In February, the FDA fined four e-cigarette makers for the first time, however, none of them included Puff Bar and the agency has not taken similar action since.

Meanwhile, these illicit products continue to flood the market, enabling access to young people both across Wisconsin and the country at large. Surveys show that nearly one-third of Wisconsin high school students have tried e-cigarettes, while 20% consider themselves current users.

Unfortunately, these numbers have only continued to rise, especially with the persistence of fruit- and candy-flavored vaping products. Not only do brands like Puff Bar flout the law by staying on the shelves, but they continue to market a wide variety of flavors popular among young consumers. In fact, 80% of young people who use e-cigarettes claim they do so because "they come in flavors I like."

It's time for a crackdown on the products the FDA has already deemed a clear threat to young people across the country.

The FDA is committed to lowering smoking rates, which is a laudable goal. Yet the agency is having difficulty enforcing the bans its already imposed, raising concerns about the ability of the FDA to address the clear, ongoing threat to young people across the country.

The menthol cigarette ban, along with a very low nicotine (VLN) rule that would drastically limit the nicotine content in traditional cigarettes and would effectively force them off the market, are additional sweeping bans the FDA is considering. But both rules continue a prohibition approach that has largely failed up to this point because of lack of enforcement.

As the agency struggles with limited public health funding, it must prioritize its resources so that it enforces existing regulations before it adds extra regulations. There's no way for the FDA to do this without working collectively with state agencies to actively confiscate and pull these illegal products off the shelves. The agency could also get more aggressive with preventing the creation of these products in the first place by fining manufacturers who continue to produce and sell these products with no repercussions.

Public health research and studies have shown that preventing youth e-cigarette use will require a more concerted effort that does not involve further bans on traditional cigarettes. Youth use of cigarettes has hit an all-time low of 1.6% in the U.S., but the FDA must not let up on e-cigarettes and vaping products.

Sen. Tammy Baldwin has been a public health advocate, and we support her work to encourage the FDA to prioritize their effort and resources and double down on enforcing the law to keep dangerous products like Puff Bars and a whole host of other disposable vaping products off the market.

Paul Nannis is a public health professional and a former health commissioner for the city of Milwaukee.

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