FDA's Partial Flavor Ban Benefits Disposable E-Cigarettes

Disposable e-cigarettes, known as puffs, account for a third of all vaping sales in the United States, up from less than 2 percent three years ago. Their growth raises questions about the Food and Drug Administration’s ability to rein in the booming market and enforce its own rules.

Puffs began flooding the market in 2020, riding on the former popularity of the JUUL pod device. With a variety of sweet and fruity flavors, these products are popular among young people and are currently not subject to the same regulations as other vaping products, encouraging the rise of similar products.

A ban on flavors that does not apply to puffs

Many flavored e-cigarettes remain on the market because of the FDA's partial ban, which only limits flavors for pod-based e-cigarettes like JUUL, and exempts other types, including disposable and open-system, refillable devices.

These partial restrictions have led to a shift in consumption: products with flavors that were no longer available in pre-filled cartridges are now offered as disposable e-cigarettes, and now account for the majority of sales of these products. As of May 2020, nearly three-quarters—72.6%—of disposable e-cigarette sales were of flavors that were banned in pods. Consumption of puff brand products in the United States has exploded, increasing by approximately 1,000 % (from 2.4 % to 26.5 %) among high school students and by over 400 % (from 3 % to 15.2 %) among middle school students during the 2019–20 period.

Requested by the Reuters news agency[1], a Chicago-based market research firm (IRI) has revealed that U.S. consumers have spent more than $2 billion on disposable e-cigarettes in the past year, surpassing the market share of once-leader JUUL by about 3 percentage points.

Use of synthetic nicotine to circumvent other regulations

Many disposable e-cigarette makers have also used synthetic nicotine—nicotine created in a lab and not derived from tobacco—to exploit another regulatory loophole and offer products with sweet and fruity flavors. When products containing synthetic nicotine first appeared on the market, some companies claimed they were exempt from the agency’s regulations. Taking advantage of the FDA’s delay in responding, many disposable e-cigarette makers switched to synthetic nicotine to circumvent existing regulations. For example, the makers of Puff Bar, subject to an FDA order to stop selling their tobacco-derived nicotine flavored vaping products in July 2020, returned to the market a few months later claiming to use synthetic nicotine, allowing them to remain in the market.

In March 2022, Congress passed and signed legislation specifying that synthetic nicotine products must be regulated by the FDA's Center for Tobacco Products in the same manner as tobacco-derived nicotine products.

Despite this legislative development, the FDA has not met the deadlines set by Congress to remove these illegal synthetic nicotine puffs from the market. According to the American organization Truth Initiative[2], this inaction on the part of the agency encourages the nicotine industry to flood the market with new products with new flavors that appeal to young people.

Keywords: FDA, disposable e-cigarettes, puff, USA, vaping, flavors, flavors

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[1] Chris Kirkham, Arriana McLymore and Gigi Zamora, New 'candy' e-cigs catch fire after US regulators stamp out Juul's flavors, Reuters, published August 16, 2022, accessed August 19, 2022

[2] Elf Bar, Hyde, and Breeze – what you need to know about the rise in disposable e-cigarettes, Truth Initiative, published August 17, 2022, accessed August 19, 2022