US seizes more illegal e-cigarettes, but thousands of new ones are launching
WASHINGTON — Federal officials are increasingly seizing shipments of illegal electronic cigarettes at U.S. ports, but thousands of new flavored products continue to flow into the country from China, according to government and industry data reviewed by The Associated Press.
The figures underscore the chaotic state of the $7 billion U.S. vaping market and raise questions about how the U.S. government can stem the flow of disposable fruit-flavored e-cigarettes used by 1 in 10 U.S. teens and adolescents.
More than 11,500 unique vaping products are sold in U.S. stores, up 27% from 9,000 products in June, according to rigorous industry data from analytics firm Circana.
“The FDA destroys one product and then the manufacturers move around it and the kids move around it,” said Bonnie Halpern-Felsher, a psychologist at Stanford University who develops anti-vaping educational materials. “It's too easy to change your product a little bit and just relaunch it.”
Halpern-Felsher says she is “constantly” updating her curriculum to keep up with new vape brands and trends.
Nearly all of the new products are single-use e-cigarettes, according to sales data collected at gas stations, convenience stores and other stores. The products generated $3.2 billion in the first eleven months of this year.
The FDA has approved a handful of e-cigarettes for adult smokers and is still reviewing products from several major companies, including Juul. Regulators consider almost all other e-cigarettes illegal.
“Those who commit illegal acts do not advertise their crimes, and those who attempt to import illegal tobacco products into the United States are no different,” Brian King, the FDA's tobacco director, said in a written response to questions from AP. federal partners are using tools, such as import alerts, to stop these illegal tobacco products at the border and deter countless others.”
The increase in the number of e-cigarettes sold continues despite a record number of products seized.
An FDA database shows that officials last month “denied” access to 148 containers or pallets of “tobacco” goods, which consisted almost entirely of vaping products from China. Rejected entries are usually destroyed.
Through the end of November, U.S. officials had denied 374 such shipments this year, more than double the 118 denied in 2022.
This year's items included $400,000 worth of Esco Bars, a throwaway brand that was placed on a list of banned imports in May. The agency's published data is often preliminary because it takes time to finalize denials.
But recent history shows how easily companies can circumvent import bans.
In July 2022, the FDA banned dozens of e-cigarettes from Chinese manufacturer Fume, including the Pineapple Ice and Blue Razz flavors.
Vape sales fell after the ban, but the company launched a slew of new products and posted $42 million in U.S. sales in the third quarter of 2023, the data shows. About 98% of sales came from products not on the FDA's “red list” of products that can be retained.
Industrial shipping tactics also call into question the usefulness of import restrictions.
In July, FDA and Customs officials intercepted $18 million worth of illegal vapes, including leading brand Elf Bar. But the shipments were mislabeled as shoes, toys and other items — not e-cigarettes — forcing officials to individually open and verify the contents of more than two dozen containers.
Circana, formerly IRI, restricts access to its data, which it sells to companies and researchers. A person not authorized to share it gave the AP access on condition of anonymity.
The FDA has no schedule for updating its import lists, but said it is “closely monitoring” cases in which companies try to avoid detection.
“The FDA has a variety of tools at our disposal to take action against these tactics,” the FDA's King said.
The agency has limited powers to sanction foreign companies. Instead, regulators have sent hundreds of warning letters to U.S. stores that sell their products, but they are not legally binding.
Even as the FDA tries to work with customs officials, it is struggling to complete a years-long review of applications submitted by manufacturers seeking to market their products to adults.
The few tobacco-flavored products currently approved by the FDA are deeply unpopular. Their combined revenue was just $174 million, or 2.4% of the vape market this year, according to Circana.
“Nobody wants them,” said Marc Silas, owner of 906 Vapor store in Michigan. “If people wanted them, they would be on the shelves and that's not the case.”
Deeply frustrated with the pace of the FDA review, public health groups successfully sued the agency to speed up the process. The agency wanted to complete all major outstanding applications this year, but recently said the process would stretch into next year.
The delays have raised questions about the viability of the current regulatory framework for e-cigarettes.
“The FDA is trying to work with an old model when the entire environment has changed,” said Scott Ballin, a health policy consultant who previously worked for the American Heart Association. “They have a long line of products that need to be assessed one by one and now they are in a huge hole.”
An alternative approach would be to make decisions about entire classes of e-cigarettes, rather than individual products.
The idea initially came from small vape manufacturers who didn't have the money to conduct the large studies typical of FDA applications. Public health advocates concerned about the persistence of underage vaping have embraced it.
Halpern-Felsher, of Stanford University, is among those urging the FDA to ban all flavored disposable e-cigarettes, the products used by most of the 2 million underage teens who vape.
“If we continue on this path, there will only be new and continued generations of young people addicted to nicotine,” she said.
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