Vape Shops Might Be Exempt From Federal Flavor Ban, If You Believe Kellyanne Conway

Vape pods on sale in Biddeford, Maine in September 2019.
Photo: Robert F. Bukaty (AP)

Earlier this year, Donald Trump’s administration appeared to be ready to eviscerate the entire vaping industry with a nationwide ban on flavored e-cigarette products—with the possible exception of menthol. Now it looks like the vapocalypse has been offset somewhat, with Bloomberg reporting that the administration may exempt dedicated vape shops from the ban.

Granted, this news comes via way of Kellyanne Conway, so one could forgive it for being as authoritative as pretty much everything else she says. According to Bloomberg, Conway distinguished between tobacco and menthol flavored products and all others, which the Centers for Disease Control and Prevention has indicated is fueling skyrocketing rates of use among minors. Conway explained that the Department of Health and Human Services, which runs the Food and Drug Administration, has jurisdiction to regulate e-cigarettes but not vape shops.

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... Okay? This doesn’t match up with the FDA’s own guidance on the subject, which clearly subjects both manufacturers and retailers to FDA regulations. That the feds supposedly lack the power to ban or restrict vape shops from selling flavored products may also come as a surprise to the multiple states that have done just that.

“This is a burgeoning health crisis; the difference is between kids and adults,” Conway told reporters. “So HHS and FDA have jurisdiction over cigarettes and e-cigarettes under the Tobacco Control Act. They do not have jurisdiction over vaping and vape shops, for example. So, if we’re talking about e-cigarettes, the president, yes, he’s been discussing this with his team and he will, or HHS, will make an announcement soon.”

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“Kids report they use mint, and other flavors like mango, bubble gum, tutti frutti, unicorn milk—pretty remarkable—and that they don’t care for menthol,” Conway added.

It’s not clear what exactly Conway is referring to or whether there is some sort of reprieve planned, but one guess might be shops that mix their own e-liquids could squeeze through some kind of loophole. She could also mean that the shops will receive blanket exemptions, while other retailers like gas stations and convenience stores will be hit harder. What is clear is that the Trump administration initially took the vaping industry off guard with the initial suggestion of a blanket ban, and since then Trump’s own campaign team has urged him to roll back the scope of any action, fearing it would be unpopular with voters.

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The Office of Management and Budget announced it had finalized a rule on Monday, though your guess as to what exactly is coming is as good as ours.

According to Bloomberg, the FDA declined to comment. Former agency chief Dr. Scott Gottlieb similarly declined to comment to USA Today, but he did say this week that he believed industry giant Juul might not attempt to relabel its ultra-popular mint flavor as menthol due to external pressure, the paper wrote. Juul, which is now partially owned by tobacco giant Altria, is currently facing down multiple state and federal probes and a string of lawsuits. That includes reports of a federal criminal investigation possibly tied to marketing to minors or the high nicotine content of its products.

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Tom McKay

"... An upperclassman who had been researching terrorist groups online." - Washington Post