Across the country, government officials have warned the public about fentanyl-tainted electronic cigarettes and vaping devices. While there have been a handful of such incidents, regulators should resist the urge to restrict access to products that are legally on the market. Further limits or bans will only result in more negative impacts caused by consumers obtaining illicit vapor products.
In January, Governor Chris Sununu (R-New Hampshire) remarked that “fentanyl is now in all different types of substances, whether that be cocaine, methamphetamine, fake pills, or vape cartridges.” In addition, Florida Attorney General Ashley Moody noted that fentanyl can “possibly” be found in “illicit vaping pods.”
In 2019, the Drug Enforcement Agency did find a vaping device that contained fentanyl, yet fentanyl has never been found in regulated and legal e-cigarette products that one would find in a licensed vape shop and/or gas station.
Despite this, policymakers are now routinely introducing legislation that would ban the sale of safe and legal flavored e-cigarette products, and the Biden administration remains committed to removing menthol cigarettes and flavored cigars from the entire U.S. market. There is already a booming marketplace on the web. Take for example this Craigslist ad in New York City that offers flavored e-liquid in a variety of flavors, from peach to cotton candy. The seller informs the potential customer to “[i]nteract with [them] the same way [one] would a sales person.” Alarmingly, this seller is not interested in providing potential customers with information regarding the products that they may be consuming, noting that any questions about their “cost, date purchased, where purchased, why selling is no one’s concern.” In California, which recently enacted a ban on flavored tobacco and vapor products, a dubious seller named “menthol man” is offering to deliver menthol cigarettes for $15 a pack.
Similar to the nation’s failed experiment with alcohol prohibition, bans on tobacco and vapor products will only help to strengthen the black market and increase the profits of clandestine actors that skirt both regulations and taxes. And, due to continued delay by the FDA authorizing the thousands of American e-cigarette manufacturers, these questionable international companies have already been able to infiltrate the existing marketplace with thousands of counterfeit vapes.
Officials in the UK seized more than 300,000 counterfeit vapes in December alone, with one official saying that “vapes being seized … has risen ‘dramatically.’” A widely circulated video of a manufacturing facility making fake ELFBAR disposable vapes depicts young-looking factory workers who are seemingly testing out the product by vaping on each fake disposable. ELFBAR has worked with Chinese officials to shut down more than a dozen such facilities.
Policymakers should avoid policies that would only further the illicit tobacco product. In 2017, the U.S. State Department declared the global illicit tobacco trade a “threat to national security,” and that it is a “lucrative crime for some terrorist groups.” Exorbitant excise taxes on cigarettes already cause consumers to seek out illicit tobacco products; banning regulated flavored vapor products will only force those consumers to seek out illicit vapor products. As such, this could create incentives for terrorist groups and other bad actors to add vapes to their illegal product portfolios.
Banning flavored vapor products has all been in reaction to youth vaping rates in 2019. While the media continues to decry a youth vaping epidemic, which fuels calls to ban e-cigarettes, youth use of e-cigarettes has significantly declined, halving between 2019 and 2021. Studies and surveys show that young people are also not citing using e-cigarettes because of flavors.
Meanwhile, similar studies and surveys show that adults do enjoy flavors and that flavors help adults maintain smoking cessation. These adults do not deserve to be exposed to fentanyl vapes, or any illicit vape.
The fentanyl epidemic is raging out of control in this country. Lawmakers must refrain from flavor bans as it will only lead to issues with vapes that are far greater than nicotine.