Is the FDA Going to Enforce Flavor Ban on E-Juice?
The recent positive news for vapers from the FDA had a bit of a concerning undertone. Scott Gottlieb spoke a lot about e-juice flavors that “appeal to kids” and is asking for input on the issue of how to regulate them. The deadline for PMTAs being pushed back to 2022 is good news, and the open acknowledgement of the value of tobacco harm reduction is great, but the animosity towards flavors is a sign of the same sort of narrative we’ve come to expect from US authorities on vaping.
If more local governments go the way of San Francisco and ban flavors other than tobacco and possibly menthol, the landscape for vapers could change significantly. We’re tobacco specialists at Black Note and so moves like this wouldn’t impact us or our e-liquids, but the same can’t be said of the majority of e-liquid companies, or most importantly, the smokers and ex-smokers who depend on them to stay smoke-free.
The FDA and “Kid-Appealing” Flavors
The FDA gave vapers a bit of breathing space last week, but it’s still looking pretty grim on the whole. Along with the grandfather date (of mid-February 2007) staying put, and the PMTAs still being incredibly expensive and demanding an unholy amount of work with no guarantee of success, the familiar criticism that e-liquid flavors are intended to lure kids into vaping was a major feature of Gottlieb’s speech.
With future regulations in mind, the FDA is specifically requesting input on:
The role that flavors (including menthol) in tobacco products play in attracting youth and may play in helping some smokers switch to potentially less harmful forms of nicotine delivery.
Whether they’ll be reasonable about the role of flavors remains to be seen, but there is plenty of reason to be skeptical. The whole “kid-appealing flavors” issue is a key anti-vaping talking point, and it’s prominence in the speech suggests that the FDA is still taking it seriously. They might have taken a decisive step towards sanity on vaping overall, but the anti-vaping narrative is still at play behind the scenes.
E-Liquid Flavor Bans: The (Bad) Solution to an Overblown Problem
San Francisco’s flavor ban is an example of the sort of policies that follow from this line of thinking. From next April you can no longer sell flavored e-juice in San Francisco, although residents can import it from elsewhere. This is intended to reduce youth smoking, but the truth is it probably won’t work.
There are a lot of reasons for this, but here are some key problems:
- Most youth vapers are already smokers. Regular vaping among never-smoking teens is very rare, and most youth vapers are vaping for harm reduction purposes, not the flavors (although they do like the flavors too). Even if banning flavors did stop some of them from vaping, there is a risk they will return to smoking or just experiment with smoking instead.
- Vaping isn’t a gateway to smoking. There is just no evidence for this. Even if a non-smoking teen did start vaping specifically for the flavors, the evidence we do have suggests that they wouldn’t even use nicotine, much less get addicted and then progress to something much more dangerous and less palatable. There is more detail on all of this here.
- What is a “kid-appealing” flavor anyway? This issue is treated as obvious – gummy bear will appeal to kids but something like whisky won’t – but it really isn’t. In fact, the only study to ask this question found the opposite: kids were more interested in vaping single malt scotch flavored e-juice than gummy bear.
- Smokers depend on the flavors to quit. We do have evidence that the range of flavors is really important for smokers trying to quit. Banning all but tobacco flavored e-juice would undoubtedly reduce the number of vapers successfully making the switch.
As the FDA’s request implies, key question that has to be answered is “do flavors encourage more smokers to quit than youths they encourage to start smoking?”
Anti-vaping campaigners might try to focus on the number of youths that start using “tobacco products” (including vaping) rather than smoking, but it’s clear that for public health, the key issue is combusted tobacco use, not nicotine use.
Regardless of your take on this, the sort of estimate we need is clear. How many youths start vaping just because of the flavors? How many of these then go on to become regular smokers? And how many smokers only successfully make the switch because of e-juice flavors? Are there any specific flavors that don’t appeal to youth but do help smokers quit? Are there any that do the opposite?
These questions aren’t easy to answer, but that is no escape route for regulators. If you’re proposing an action that could have an impact on the health of the population, you should consider the potential benefits and harms of your proposed action, and how likely they are. And most importantly, you need to base this all on evidence, not unsupported claims or what you instinctively feel to be true.
To the extent that these questions can be answered based on current evidence, the conclusion is clear. Flavors are a factor that can encourage youth to vape, but for non-smokers or never-smokers, the effect is limited at best. Very few never-smoking youth start vaping regularly, and there isn’t a single documented instance of someone starting to use nicotine through regular vaping and then progressing to regular smoking. It’s sure to have happened somewhere, but given all the interest in this issue, the lack of a single anecdotal report shows that it must be very rare indeed.
On the opposite side, there are tons of anecdotal reports that flavors – even those that people might feel would appeal to youth – do help smokers quit. There are surveys of vapers confirming the importance of flavors for quitting. Even if many vapers would have been able to quit without a specific flavor or type of flavor, there is much more reason to believe that banning flavors would have a negative impact on quitting rates than there is to believe it would reduce youth smoking.
On the whole, there is no reason to be positive about these policies. They’re ill-thought out and very likely to do more harm than good.
Are Tobacco and Menthol Included?
There is a more fundamental issue with e-liquid flavor bans too: all e-liquid is flavored.
Much of the discussion of flavor bans treats tobacco e-juice as though it’s “unflavored.” This is obviously false: e-juice wouldn’t taste like tobacco unless flavorings were added or flavor was taken directly from tobacco leaf (like Black Note does). Any true “flavor ban” would leave only genuinely unflavored e-liquid and would ban tobacco and menthol e-juice too. But this (thankfully) doesn’t happen.
In legal terms, the issue is really about “characterizing flavors.” This was defined with cigarettes and actual tobacco-containing products in mind, and basically means anything which provides the dominant flavor for the product aside from the tobacco itself or menthol.
Even though vaping is totally different (tobacco isn’t the “default” flavor), these same standards are being applied to it regardless. If the rule had been written with e-liquid in mind, any exemptions and inclusions would have to be justified. You’d have to think about whether requiring a much safer product to taste like a more dangerous product is actually a good idea.
But that’s really just idle commentary. The reality is that such issues will be ignored: tobacco and (probably) menthol will be exempted from any e-liquid flavor bans because of the ill-informed assumption that they are the expected flavors for a “tobacco product.”
Black Note is Here to Stay: Supplying Vapers is What Matters…
Fortunately for fans of Black Note, we knew this was a possibility when we were first getting started. We want to make sure we’re always there to supply vapers with high-quality e-juice, and we’re ready to jump through any regulatory hoops and meet senseless flavor bans head-on.
More than anything, vapers need enjoyable flavors, and while many companies do a great job helping smokers quit with sweet, fruity and other non-tobacco flavors, their continued availability isn’t guaranteed. It’s a tragedy that smokers who need non-tobacco flavors to quit might not be able to get them, but whatever happens, it’s clear that smokers will still need enjoyable flavors for vaping to work for them.
That’s why we focused on providing top-quality tobacco and menthol flavors from the get-go. With such a huge spectrum of e-liquid flavors available, for many mixers tobacco and menthol are almost afterthoughts. Tobacco flavors rarely capture the complex, multi-tonal flavor of the real thing, and while many smokers instinctively choose tobacco flavors when they start, most quickly progress to non-tobacco flavors after being disappointed with what’s on offer.
If a characterizing flavor ban is pushed through in more localities – or even nationally – then most mixers will have a lot of catching up to do in order to make tobacco e-juices that can really compete. It will change the US vaping landscape significantly, and without high-quality tobacco e-juice, smokers will struggle to quit by vaping.
But at Black Note we’ve been perfecting tobacco e-juice for years, and whatever happens, we’ll be there to give smokers and vapers something enjoyable to vape.
…But Flavor Bans Still Must be Fought
We probably won’t be affected by flavor bans ourselves, but we will continue to oppose them wholeheartedly. Contrary to the supporters’ claims, they will likely have a negative impact on smokers and vapers overall. They will do little to reduce youth vaping and will undoubtedly hinder quit attempts from adult smokers.
Along with a few other things about the recent announcement, the focus on “kid-appealing” flavors from the FDA is a sign that there is a lot more work to do. The anti-vaping narrative may have taken a big hit as authorities increasingly move towards a more rational approach to regulation, but in many ways, its influence is still hard to avoid. As vapers and advocates, we need to tackle this narrative head-on and make it clear that flavor bans just won’t work.
We need to stand up for our right to vape, but most importantly, we need to stand up for the rights of all the smokers who haven’t made the switch yet. Black Note will always provide high-quality tobacco e-juice, but if we don’t make our voices heard, other companies will run into insurmountable road-blocks more quickly than we might hope, and ordinary smokers will be the ones who suffer.
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