HR 901 - Prioritization of Enforcement of Disposable Vapes

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After disposables have taken over the U.S market, Representative Cherfilus-McCormick from Florida has introduced a new bill to focus on them. HR901 would push the FDA to focus enforcement attention on disposable vapes. A statement from her reads:

“As the mother of two children and a former healthcare executive, I am pleased to introduce this critical legislation. Too many of our youth are forming nicotine addictions, increasing their risk of future addiction to other drugs. I am even more troubled by the fact that Chinese manufacturers and suppliers are flooding the U.S. market with unregulated, harmful substances that are altering our children’s brain development and lives. I am calling on the Biden Administration to close this harmful loophole for the sake of our youth and to put an end to this national epidemic.”

At the time of writing, the exact text of the bill is not available at congress.gov’s bill tracker. However, what Representative Cherfilus-McCormick says about the bill means there’s some ideas about what will be in it. 

What is the loophole Rep. Cherfilus-McCormick talks about?

The loophole is referring to a relatively old statement. Before the PMTA deadline occurred and during the Trump years, there was a wave of illnesses related to black market vapes. The illnesses were termed E-cigarette or Vaping Use-Associated Lung Injuries, or EVALI. Enforcement believed that the illness was linked to black market, cheaply made pod replacements.

Disposables were exempt from priority enforcement as they were seen as safer. A disposable vape was supposed to be difficult to open up, tamper with, and put back together. They were also more expensive to manufacture compared to pods as they needed more parts. Black market cartridges, especially for popular systems like Juul, were popular and sold under dubious conditions.

The reason there hasn’t been so much talk about this loophole inside the vaping industry is that all those disposables are illegal now that the deadline for the PMTA has passed. 

Why would legislation focus on enforcing disposable vapes now?

Times have changed. Disposables are now more popular than pod systems. When thinking about vapes that are popular among highschoolers and why, Juuls aren’t the answer anymore. Instead, it’s a variety of disposable companies. These companies make up a large part of the U.S vaping market - 2 billion dollars large.

The issue with disposable vapes is not their legal status. None of them have been approved through the PMTA process, so they are already illegal. The FDA could put effort into cracking down on them. On paper, getting rid of every single illegal vape would benefit both legal, approved vapes and youth smoking rates. In reality, the FDA likely does not have that kind of manpower.

Going after black market companies takes time, money, and can be unfeasible to try. Dank Vapes was a company that may not have mixed vape juices, only vape juice boxes. Puff Bars is still operating despite warning letters from the FDA. Smaller companies can even rebrand or switch supply chains before the FDA can finish writing them a warning.

Disposable vapes also have advantages most other vaping devices do not have given the U.S. market. Mods and cartridge style vapes rely on their companies being stable enough to provide replacement parts and pods. They cannot adapt to market disruptions nearly as well as disposables, and that has led to the popularity of disposable systems.

While shady disposable vapes are a problem, they are popular because they are the best suited to fill a gap that legal, safer alternatives have trouble doing. The problem with the vape market is not the FDA’s inability to prioritize, but that the system they have set up is far too difficult for them to enforce properly.


U.S. Rep. Cherfilus-McCormick Introduces Legislation to Protect Children From Flavored Disposable E-Cigarettes


New 'candy' e-cigs catch fire after U.S. regulators stamp out Juul's flavors | Reuters 

R.J. Reynolds Asks FDA to Target Disposable Vapes for Enforcement - Vaping360 

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