Gottlieb Considers Banning Online Vape Sales

Gottlieb Considers Banning Online Vape Sales

With a flavor ban already on the table and e-cigarette manufacturers under pressure to do the FDA’s job and prevent underage sales, FDA Commissioner Scott Gottlieb added fuel to the anti-vaping fire by suggesting the agency might consider an online sales ban.

“That’s going to be one thing that’s on the table,” Gottlieb said Tuesday, referring to online sales. “It’s very clearly something we are now looking at.”

Gottlieb was speaking at an event in Washington, D.C. moderated by Axios co-founder Mike Allen. American Vaping Association president Gregory Conley also was interviewed by Allen, along with two high school students and the founder of a high school anti-tobacco organization. The interviews were conducted separately.

Gottlieb says he has seen preliminary results from this year’s National Youth Tobacco Survey that prove teenage vaping has become “an epidemic.” The numbers are “moving in the wrong direction,” he says, claiming an increase in past-30-day use of over 75 percent. The FDA will release some of the early survey numbers in November — but that’s after the deadline Gottlieb has given JUUL and the tobacco companies that make e-cigarettes to prove that they can manage the unproven problem.

Gottlieb says the FDA may have to take drastic action to halt the vaping trend, including possibly eliminating e-liquid flavors, instituting immediate premarket reviews of existing products (which had been delayed by Gottlieb until 2022), and restricting online sales. The FDA will take action — whichever action it decides on — around November, Gottlieb says. Meanwhile, the agency is spending $60 million on a 1990’s-style anti-vaping campaign called The Real Cost.

“Flavors are the number one issue,” said the AVA’s Greg Conley. “If you do not have flavors, you will not have adults switching to these products. You can just get rid of the entire category if you do not have flavors available.” Conley spoke before Gottlieb, and didn’t know the commissioner was going to raise the possibility of an online sales ban.

A survey of adult American vapers done earlier this year by Dr. Konstantinos Farsalinos showed that vapers by far prefer fruit and dessert flavors over other choices like tobacco flavors. That doesn’t seem to matter to those who claim sweet flavors are a direct appeal to teenagers.

Aside from losing flavors and facing immediate premarket review, nothing would damage the independent American vaping industry — and vapers — more than an online ban. Much of the U.S. population doesn’t have easy access to vape shops, which are rare in rural areas, small towns, and even some big cities where rent and property taxes are expensive or local laws restrict flavors. And many of the oldest, most respected vaping vendors are online-only businesses — many of which were doing business before vape shops existed. Early vaping culture existed solely online.

An online sales ban would require the FDA to go through its usual rulemaking process, as the agency is doing now for flavors. Another possibility for the FDA would be to request Congress amend current law that restricts online tobacco sales to include vaping products.

A ban on online sales would hand a huge advantage to JUUL and the vape products made by tobacco companies, because those products are widely available in convenience stores, tobacco shops, and gas stations — and because they depend less on flavors than e-liquid manufacturers. Prohibition of online sales would also drive prices up, and would lead to large-scale DIY e-liquid production and black market liquid sales.

Gottlieb reminded us in the Axios interview that the FDA could bring back premarket review anytime. The delay until 2022 was his decision, and he could reverse it if he so chooses. The special interest groups that want vaping to disappear are already suing the FDA to force the agency to reinstate its original 2018 deadline for vape manufacturers to submit premarket tobacco applications (PMTA’s) for each product they already sell.

But this isn’t an either-or proposition. If online sales are eliminated, the anti-vaping organizations and grandstanding politicians that want a flavor ban will keep trying — and vice versa. If the FDA immediately demanded PMTA’s for every product on the market, flavors would disappear immediately. Losing one key industry pillar won’t make the others stronger. Any one of these regulatory possibilities would pose an immediate existential threat to the independent vaping industry.