Regulating vaping with a deadlier habit in mind

Some 34 million U.S. adults smoke cigarettes, and tobacco use causes more than 480,000 deaths annually, according to the Food and Drug Administration. Vaping has been marketed as a lower-risk way for adult smokers to curb cravings, yet it has surged in popularity among teens. So how can lawmakers discourage youth use of e-cigarettes while protecting access for adult smokers who are using them to help quit smoking?

That was the problem tackled in a recent panel sponsored by the Petrie-Flom Center and Center for Bioethics and the Program on Regulation, Therapeutics, and Law (PORTAL).

“In 2024 about 8 percent of high school students in the U.S. reported e-cigarette use, which was a decline from 10 percent the year before, suggesting a moderate success of policy interventions aimed at decreasing use of e-cigarettes and vaping among youth,” said the event’s moderator, PORTAL researcher Joseph Daval. “But evidence also suggests that while some interventions like bans on flavored vapes might decrease use among youth, these gains may come at the expense of increased use among adults of combustible tobacco products, which remains the leading cause of preventable death in the U.S.”

E-cigarettes — which use internal heating elements and flavored nicotine liquid — have fewer toxic chemicals than traditional cigarettes and a reduced carcinogen exposure from the inhalation of burning tobacco.

“There’s myriad research pointing to e-cigarettes as an effective smoking cessation aid,” said panelist Abigail Friedman, an associate professor of public health at Yale.

However, when e-cigarettes first became widely available, it was unclear whether the FDA — the regulatory agency responsible for cigarette sales — would regulate this new product. Daniel Aaron, an associate professor of law at the University of Utah, explained that it wasn’t until 2016 that e-cigarettes were considered part of the “deeming provision” of the Federal Food, Drug, and Cosmetic Act, giving the FDA regulatory control.

“A seven-year regulatory gap is a significant time period for new tobacco products to gain a foothold, and thus for the FDA to fall behind the mark as far as regulation,” Aaron said.

Youth e-cigarette use peaked in 2019, when more than 5 million teens across the country reported using them. Since then, federal and state governments have been attempting to curb use by banning sweet flavors that attract younger customers and requiring pre-market review for new products.

But the FDA’s regulatory authority has been weakened by rulings that limit its ability to financially penalize tobacco distributors and retailers that manufacture e-cigarettes. In August, the District Court for the Northern District of Texas ruled that the civil money penalty provision of the Food, Drug, and Cosmetic Act for tobacco products was unconstitutional.

“The FDA is capped at about $21,000 for these penalties in a market that’s worth more than a billion dollars every year,” Friedman said. “It’s not clear that that is impactful enough to move the needle for these firms when it is such a profitable market.”

Programs that propose penalties for disbursing grants to state governments have been successful in regulating age restrictions on other products like alcohol, but have yet to be utilized in the regulation of non-combustibles, she added.

“There is a lot of money that states will lose if they cannot demonstrate compliance with minimum legal sales age laws for the FDA, which leads to a strong incentive for states to run compliance checks and try to enforce this. And it’s not perfectly enforced, but there is a reason that we would expect this to work,” she said.

An underlying concern of any legislation, Friedman added, is the risk of turning e-cigarette users of any age into smokers.

“There’s a substantial body of evidence demonstrating that e-cigarettes and cigarettes are economic substitutes,” she said. “What that means is, if you make one of these products more expensive, less accessible, or less appealing, you’ll see increased use of the other, and that’s been borne out in studies across all age groups.”