Trump's "vape ban" has a major loophole targeted at adult vapers

On Thursday, the Trump administration and the FDA decided on the fate of flavored vape products. However, the “vape ban” is far from what public health advocates, the “We Vape We Vote” movement or the millions of teens who picked up vaping habits in 2019 were likely expecting.

The FDA announced in a non-binding industry guidance document that fruit and candy-flavored pre-filled vape cartridges (like those used in a JUUL) are now illegal. Menthol and tobacco pre-filled vape cartridges remain legal.

Meanwhile, what also remains legal is flavored vape juice — as long as it can be placed in a large, tanked based container. These containers are kind that are typically sold at vape shops. With that loophole, the FDA is attempting to both keep teens away from vaping and appease an increasingly politically motivated cohort of adult vapers.

"I never thought I would be able to say I was in a meeting with the President of the United States.”

That latter group includes Gregory Conley, president of the American Vaping Association. He says the new policy can be attributed to pressure from his advocacy organization, the vape industry and the “we vape, we vote” movement that he is affiliated with. He tells Inverse those groups contributed “significantly” to the watered-down FDA action.

“I never thought I would be able to say I was in a meeting with the President of the United States,” he tells Inverse. “But I was.”

The new politics of vaping

The FDA first proposed action against vape flavors in 2018, when record numbers of teens took up vaping. However, federal policy regarding vape flavors didn’t appear to be a real possibility until this fall when a vaping-related illness (EVALI) sickened thousands.

It eventually became clear that EVALI was caused by black market THC vapes. Regardless of that finding, on September 11 Trump announced on Twitter that the FDA would put out “some very strong recommendations” on flavored e-cigarettes.

If you ask Conley, Trump’s September 11th statement was the origin of the “we vape we vote movement”. That movement now has a website and continuous Twitter activity under the hashtag #WeVapeWeVote. Motivated vapers ran television ads in October.

“You had hundreds, thousands of vapers, some of whom had never done advocacy in their life, who saw that Twitter was the place to go to send a message directly to the president,” says Conley.

“Clearly, the negative reaction for many people who proclaim themselves to be Trump voters was felt by his reelection campaign and by the president directly,” he asserts.

However, Robert Jackler, the principal investigator at Stanford Research Into the Impact of Tobacco Advertising, doesn’t think that the administration was actually at risk of losing all that much if it went with a full-blown ban on flavored vaping products.

"Voters are seldom more passionate about issues than those affecting the wellbeing of their children."

Instead, he tells Inverse that the administration is “swayed by a mistaken perceptions” that a vape ban would disadvantage Trump’s reelection campaign.

“In every district in America, there is upwelling angst among parents of teens who are getting hooked on nicotine via e-cigarettes,” Jackler says. “Voters are seldom more passionate about issues than those affecting the wellbeing of their children.”

Still, it was Conley, the vape advocate, who found himself in crucial talks with the President. He met with Trump, Secretary of Health and Human Services Alex Azar, Tony Abboud of the Vapor Technology Association and other medical organizations.

It was during those talks, the idea of an alternative to a full-blown flavor ban was first floated. 

Conley says that it was the “small business angle” that appeared to drive the president’s decision. This ban, Conley points out, will allow vape shops to keep selling flavored vape juice, which he argues “make up a majority of their sales.” Vape shops make up an estimated 40 percent of the vape industry.

The move also will leave the products on the market and potentially available to teens. That fact has drawn scrutiny from medical groups like the American Lung Association.

“The American Lung Association is sad to see an industry-supported approach take precedence over our kids’ lung health,” said Harold Wimmer, the organization’s CEO and President in a statement released Thursday.

“Riddled with loopholes”

This ban is supposed to make vaping more complicated for teenagers in a simple way: If you want to vape any flavor other than menthol or tobacco, you’re going to have to fill your own pods.

But some argue that complication isn’t nearly enough to stop enterprising teens with a nicotine habit. For instance, one 2019 JAMA study found that 44.7 percent of California vape shops — those that sort that sell the flavored vapes still legal — sold e-cigarette products to minors.

Jackler adds that the refillable pods that fit into a JUUL are also already available. Furthermore, for the most part, making your own flavored vape juice is far more cost effective than buying a JUUL, which could entice teens.

“Refilling a pod is much cheaper than buying a pre-filled pod from JUUL and teens are notably price sensitive,” Jackler argues. He predicts that teenagers will continue to use small pod devices, as they are easy to hide, but will eventually switch to menthol flavor pods fill refillable pods with the flavored liquids still on the market.

Conley admits that many vapers also prefer closed pod systems because they “bring convenience and simplicity.”

The question is whether filling your own pods is inconvenient enough to dissuade teens, who vastly prefer flavored e-juice to stay away from vaping. Jackler, as well as the American Lung Association, don’t seem to think so.

“The new set of regulations is riddled with loopholes and will have little, if any, effect on the youth vaping epidemic,” he says.

What’s next for flavored vape juice?

This loophole illuminates a subtle reframing of the debate over what causes teens to vape in the first place, which unfolded over 2019 and into the earliest days of 2020. It’s not all about flavors anymore.

In November 2018, Scott Gottlieb, the FDA commissioner at the time, released a statement in response to a spike in vaping amongst teens, arguing that there was a need to have “a policy framework that firmly and directly addresses the core of the epidemic – flavors.”

Since then the targeting of flavors has become less aggressive and more nuanced. In a November 2019 op-ed to the Washington Post, Gottlieb, no longer the FDA commissioner, wrote that combating teen vaping “ starts with differentiating between sleek, mass-produced e-cigs that use pre-filled, flavored pods of nicotine, as with Juul’s products, and hardware that requires nicotine to be poured into open tanks.”

The FDA’s guidance document does stat that the FDA is “extremely concerned about flavors.” But it also adds that “most youth who were current e-cigarette users reported a cartridge-based e-cigarette as their usual brand” and notes that the design of cartridge-based products is “of particular concern.”

Distinction between the ease and appeal of pod based cartridges compared to refillable ones allows flavors to stay on the market slightly longer than anticipated. For now, it’s a test of whether targeted JUUL-like e-cigarettes really is a way to please both adult vapers, and those looking to keep teens away.

Still, vape advocates don’t see it as entirely a win. Conley describes it more as a delay of vape flavor execution. They are safe for now — but for how long?

What vape manufacturers do know is that they have to submit their products to the FDA for review within the next 130 days, regardless of what specific type of vape they produce.

This opens up vape products to a pre-market approval process during which the manufacturer will have to provide scientific data showing that the product is “appropriate for the protection of public health.” Conley and other vape advocates would rather not see that happen.

When that day comes, Conley says the #IVapeIVote movement is prepared to mobilize. They’re anticipating a busy 2020.

“This is not a well-funded movement that can take out 200,000 in ads in a house primary,” he says. “But it is certainly the beginning of something that is going to grow over the next few years.”