Wednesday, Feb. 5 is the last day retailers can legally sell prefilled pod- and cartridge-based vaping products in flavors other than tobacco and menthol. Companies selling them after that date are subject to enforcement by the FDA.
The change is not a new rule, but simply a change in FDA’s enforcement priorities. All vaping products currently exist on the market only because the agency has not prioritized their removal. By May 11, all products must submit Premarket Tobacco Applications (PMTAs) or be removed from the (legal) market.
The new guidance does not affect bottled e-liquid or vaping devices that are not sold already containing e-juice. It also exempts disposable e-cigarettes, like the NJOY Daily and disposables sold by blu and smaller companies like White Cloud.
Contrary to claims by politicians like Illinois Sen. Dick Durbin, anti-vaping groups like Truth Initiative, and even the New York Times, the “disposable loophole” does not exempt recently introduced pod-shaped disposables like Puff Bars from enforcement. Any vaping product that came to market after Aug. 8, 2016 is already subject to immediate enforcement. That means that FDA doesn’t need to issue specific guidance to remove the popular new disposables.
FDA announced the policy change on Jan. 2, following weeks of rumors. The Trump administration had originally announced a ban on all flavored products, which would have covered bottled e-liquid too, but backed off after months of grassroots opposition from vapers and pushback from industry advocates.
The new FDA guidance was published in the Federal Register on Jan. 7, after which there was a 30-day delay before the changes took effect. Retailers that sell the banned products after 11:59 p.m. on Wednesday could receive warning letters from the FDA.
The categories of vaping products the agency named as targets for enforcement are:
- Flavored, pod- or cartridge-based products (other than tobacco- or menthol-flavored products)
- All other products for which the manufacturer has failed to take adequate measures to prevent access by minors
- Any product targeted to minors or whose marketing is likely to promote use of vaping products by minors
The FDA action is intended to eliminate the products most commonly used by teenage vapers, but it’s doubtful any government restrictions can prevent kids from finding things to vape. Market-leader JUUL Labs voluntarily removed its popular mint pods last November, and the company had already eliminated its other flavored products in 2018.
For teenagers, the vaping cat is out of the bag. As long as a market exists, shady manufacturers and “gray market” sellers will find a way to fill the gap left by JUUL by providing Juul-compatible pods and disposables like Puff Bars. Never in the history of adolescence has banning products prevented devious and mischievous teenagers from getting hold of them. The existence of online retail markets like eBay make it all but impossible.
Some retailers and manufacturers’ websites have offered deep discounts on products for the last few weeks—and especially over the last week—as they try to empty shelves and warehouses before the rule change makes the products worthless. If you’re a fan of prefilled pod vapes or cigalikes, now is the time to search for the best deals and stock up.
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