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The Predictable--and Preventable--Epidemic


New data shows that vaping increased almost 80% among high school students and 50% among middle school students from 2017 to 2018. According to the CDC, 1 in 5 high schoolers has vaped in the past month. In addition, it’s not just the number of kids vaping that has changed, but the vaping itself: students who vape report doing so more often, almost on a daily basis. The outcry from parents and health experts alike prompted the Food and Drug Administration to announce new regulations against flavored nicotine products on November 15, 2018. The proposal does not include mint, menthol, and tobacco flavors.

E-cigarettes have largely escaped regulation because they do not contain tobacco and are not combustible cigarettes. They have been portrayed as smoking cessation devices, particularly the mint, menthol and tobacco flavors. However, there is no concrete evidence that e-cigarettes actually help smokers stop smoking; i.e. that a significant portion of the market for e-cigarettes includes people transitioning away from combustible cigarettes to vaping. Meanwhile, although e-cigarettes do not contain tobacco, they do contain nicotine and other chemicals. Putting aside for the moment the fact that the impact of the other chemicals on the brain is not known, the impact of nicotine is: it is highly addictive, can interfere with concentration and appetite, and can lead to smoking traditional cigarettes. This is the crux of the issue; data shows that kids using e-cigarettes are more likely to try combustible cigarettes later on.

In other words, e-cigarettes are not a smoking cessation device. E-cigarettes are a gateway tobacco product.


When e-cigarette manufacturers marketed flavored pods such as bubble gum and mango, and a new startup called Juul designed a vaping device that looks exactly like a USB flash drive, vaping—or “juuling”—became wildly popular among teens. In 2017, the e-cigarette market expanded by 40% to $1.16 billion, with Juul making up half of all retail market sales in the U.S. Considering that Juul has only been around since 2015 and there are hundreds of other e-cigarette brands on the market, Juul’s market share—and retail power—is unprecedented. What is particularly alarming is that Juul contains an unusually heavy dose of nicotine.

Is Juul’s extreme popularity and its huge dose of nicotine unrelated? Probably not. Nicotine is addictive, after all. Is it surprising? It should not be. If addictive, flavored juice is combined with a device that looks like a flash drive that fits in a jean or shirt pocket, how can it be surprising that this becomes popular in the under-21 demographic?

The FDA allowed manufacturers to skip pre-market approval, but is now asking them to voluntarily remove flavored e-cigarettes from stores and online sites where minors can too easily access them—stores and sites that are not “secure.” If manufacturers do not voluntarily comply within the next 90 days, then the FDA will take regulation to the next step to ensure that minors do not have access to flavored e-cigarettes.

For a problem that was entirely predictable, the proposed solution is entirely lacking. First and foremost, the FDA’s proposal as announced on Nov. 15th does not reverse its decision to delay premarket review of e-cigarettes through August 2022. The FDA granted e-cigarettes this delay in 2015, and what it means in practice is that e-cigarettes can stay on the market without FDA review until that date, or 7 years.

Granting this delay and then not rescinding it is huge. Premarket review is used to prevent exactly what happened with Juul: the introduction of a product that was marketed to, appealed to, and took hold with minors. The product—e-cigarettes—is at best addictive and at worst a health hazard; evidence shows that it is a gateway product to traditional cigarettes. Because a premarket review delay was granted, Juul and other e-cigarettes were marketed to kids and became wildly popular, so popular that the brand name is now used as a verb to describe vaping. “Juuling” has become an epidemic.


Now that e-cigarettes are unfortunately part of the teenage landscape, just as combustible cigarettes were 30 years ago, health experts are calling on the FDA to take more aggressive steps than its November 15 proposal outlines. Specifically, critics of the FDA’s recent proposal regarding e-cigarettes want the agency to:

1. eliminate flavors;

2. ban online sales;

3. restrict marketing appealing to youth; and

4. require thorough premarket review.

The hope is that if the FDA puts forward these more stringent actions, the e-cigarette epidemic might get under control. If left unchecked, the current epidemic means that a whole new generation is addicted to nicotine and, if data is correct, will become smokers.


If you or someone you know thinks they have suffered harmful effects from e-cigarettes, including nicotine addiction and respiratory problems, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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