Examining Legislative Responses to Vaping Linked Deaths: Why Raising Sale Ages for Nicotine or Banning Flavored Vaping Products Doesn’t Solve the Issue

By Margaret Lu
Margaret (Maggie) Lu is a sophomore at the University of Chicago studying English and Spanish.

​On September 6th, Senator Dick Durbin called for the resignation of the FDA lead.  On September 11th, President Donald Trump promised to ban the sale of flavored vaping products. While the dangers of cigarettes are widely known and warned against in American media, e-cigarettes & vaping are often touted as a “safe alternative” to cigarettes [i]. Juul usage has quietly taken a deadly turn, most recently causing the 12th death of a person related to vaping [ii]. Apart from banning the sale of flavored vaping products outright, another avenue being explored is to raise the sales age of vaping to 21. Both solutions have pros and cons, but neither touch on the key issue: discovering the actual cause of vaping deaths.

Signifying one of the most substantial actions taken to reduce the leading preventable cause of death in the United States, in June of 2009, the FDA was given ultimate authority on the regulation of tobacco products that are manufactured, marketed, and sold [iii]. Now, even more daring proposals, such as banning flavored e-cigarettes altogether, are being drafted. The Family Smoking Prevention and Tobacco Control Act and the FDA have recently come under fire by multiple agencies, resulting in Trump pledging to ban flavored e-cigarettes, states tightening age restrictions on purchasing tobacco products, and the Juul’s chief executive stepping down [iv].

Donald Trump’s proposed ban on flavored e-cigarettes may seem like a sound solution. However, flavors like bubblegum and cotton candy in e-cigarettes may not be the culprits that have caused 1,000 lung illness cases and 12 deaths [v]. Rather, one major culprit appears to be vitamin E acetate, a thickening agent used in low-quality THC and black market products. Suppose this theory was incorrect. it would still be faulty to rush into banning flavored e-cigarettes without investigating first to make sure the flavoring agents contribute to the deaths.

Furthermore, banning e-cigarettes may not be the right solution to preventing addiction to vaping products, either. Despite the 18th amendment, drinkers kept imbibing during Prohibition due to illegal production, bootlegging, and the existence of speakeasies [vi]. Vapers, too, likely turned to underground markets or traditional Tobacco products. As history has shown, Trump’s policies wouldn’t stop people from using nicotine; they may cause a few to quit, but most likely, people would find other avenues to obtain their contraband.  

A measure that could remedy the above-mentioned problems is raising the statewide age of purchasing tobacco and related products to 21, which lawmakers believe will reduce addiction because the older we grow, the less likely we are to become addicted to nicotine [vii]. However, the effectiveness of this proposal is questionable. In accordance with new age restrictions, Juul took most of its flavored pods off store shelves in November last year. Despite Juul flavors being removed from convenience stores, E-cigarette sales grew 100% between November 2018 and February 2019 [viii]. In addition to the age restriction having little impact in reducing consumption, other alternatives like going to other states or non-licensed vendors for purchases are still options. 

Whether it be banning flavored vaping products or raising the sales age of vaping and tobacco products, people may still be tempted to seek other means such as the black market, other states, or other drugs. More importantly, any short term decreases in vaping will not necessarily translate into long term success. 

It is hard to deny that vaping flavors like unicorn milk, bubblegum, and gummy bears are geared towards children [ix]. As such, legislative action must be taken to protect children from addiction to vaping. But causes of deaths may not be linked to the flavors themselves. We need to unearth the actual cause of death before implementing hasty bans on the wrong issue, preventing addiction rather than saving its victims. 

Reference:
[i] “Warning Letter.” fda.gov, September 9, 2019. https://www.fda.gov/inspections-compliance-enforcement-and-criminal-investigations/warning-letters/juul-labs-inc-590950-09092019
[ii] Lovelace, Berkeley Jr. “CDC says vaping lung cases surge 52% in the last week to 805 with at least 12 deaths.” CNBC, September 26, 2019. https://www.cnbc.com/2019/09/26/cdc-says-vaping-lung-cases-surge-52percent-in-the-last-week-to-805-with-at-least-12-deaths.html
[iii] U.S. Food and Drug Administration. “Family Smoking Prevention and Tobacco Control Act - An Overview.” September 9, 2019. https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/family-smoking-prevention-and-tobacco-control-act-overview
[iv] McGinley, Laurie. “Juul says its chief executive is stepping down, accepts proposed ban on flavored vaping products.” September 25, 2019. https://www.washingtonpost.com/health/juul-announces-it-is-replacing-chief-executive-accepting-proposed-ban-on-most-flavored-vaping-products/2019/09/25/563ee81e-df8a-11e9-b199-f638bf2c340f_story.html
[v] Edwards, Erika. “Vaping illnesses soar past 1,000 with investigators no closer to pinpointing cause” NBC News, September 25, 2019. https://www.nbcnews.com/health/vaping/vaping-illnesses-soar-past-1-000-investigators-no-closer-pinpointing-n1058531
[vi] History.com Editors. “Prohibition.” June 12, 2019.                                          https://www.history.com/topics/roaring-twenties/prohibition
[vii] Office of the Surgeon General. “Preventing Tobacco Use Among Youths, Surgeon General fact sheet.” September 9, 2019. https://www.hhs.gov/surgeongeneral/reports-and-publications/tobacco/preventing-youth-tobacco-use-factsheet/index.html
[viii] Ho, Catherine. “Why Juul is thriving despite the crackdown on youth vaping.” San Francisco Chronicle, April 7, 2019. https://www.sfchronicle.com/business/article/Why-Juul-is-thriving-despite-the-crackdown-on-13746124.php?psid=oN2lO
[ix] Bloomberg, Michael. “Ban Flavored E-Cigarettes to Protect Our Children.” The New York Times, September 9, 2019. https://www.nytimes.com/2019/09/10/opinion/vape-deaths-children-bloomberg.html

​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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