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FDA limits restrictions on flavored e-cigarette sales to stem surging underage use

Instead of banning the sales of sugary-flavored e-cigarette products aimed at children, as previously considered, the Food and Drug Administration has proposed new rules that would limit sales to areas in convenience stores and other retail outlets that require an ID to enter.

If marketed online, the same products could only be sold only using “heightened practices for age verification,” the FDA commissioner, Scott Gottlieb, wrote in a November 15 statement.

The rules would not apply to mint-, menthol- or tobacco-flavored vaping products.

The agency and the Centers for Disease Control and Prevention also jointly released a report finding that more than 3.6 million middle and high school students used e-cigarettes in 2018, a nearly 75 percent increase from the 2.1 million youths who reported using the products last year.

And the study said middle and high school students who use e-cigarettes are doing so more frequently than they reported last year, resulting in an overall rise in youth tobacco use, reversing a decline in recent years.

In July, Gottlieb said the agency was considering restrictions on e-cigarette products with flavors that appeal to children. And in early November, high-level FDA officials told The Washington Post and other media outlets that the agency was considering an outright ban on flavored vape products.

But in a Nov. 15 statement, Gottlieb said the agency was attempting to balance the “potential for innovative, less harmful products” for adults with the need to limit their use by kids.

“The data show that kids using e-cigarettes are going to be more likely to try combustible cigarettes later,” Gottlieb wrote. “Almost all adult smokers started smoking when they were kids. Nearly 90 percent started smoking before the age of 18, and 95 percent by age 21. Only about 1 percent of cigarette smokers begin at age 26 or older.”

The FDA also announced a potential ban on menthol flavoring in traditional tobacco products, including cigarettes and cigars. According to the statement, 54 percent of youths 12 to 17 who smoke combustible cigarettes use menthol products, more than any other age group. And the prevalence of menthol use among African-American youth is even higher, with seven out of 10 choosing menthol cigarettes.

Stateline is a nonpartisan, nonprofit news service of the Pew Charitable Trusts that provides daily reporting and analysis on trends in state policy.

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The Pew Charitable Trusts

Utah Smoke Free Association executive director Aaron Frazier, members Brian and Deanna Fisher and “vape shop” owner Jason Jones (left to right) blow vapor from e-cigarettes at Jones’ “Vapor Mania” store.