Ohio: Attorney General Files Lawsuits Against Retailers for Illicit Sale of Vaping Products

Ohio Attorney General Dave Yost has filed charges against three Ohio vaping retailers for unfair or deceptive practices under the Consumer Sales Practices Act. The charges include selling illegal vapes, failing to disclose that the products were illegal, and misrepresenting the products as authorized.[1].

Yost said that unless the vaping product being sold is one of the twenty-seven products approved by the U.S. Food and Drug Administration (FDA), the product is illegal in Ohio—and across the United States. To date, the FDA has approved only twenty-seven vaping products, all of which are tobacco or menthol flavored. Yet thousands of products, including many other appealing flavors, remain for sale at retailers and online.

An example for other attorneys general to follow

Anti-smoking associations, including the Truth Initiative[2], applaud the Attorney General’s decision. Truth believes this is an important step toward protecting teens and young adults from the dangers of nicotine addiction. The organization believes this initiative should be taken by other attorneys general across the country. According to the 2023 National Youth Tobacco and Nicotine Use Survey, e-cigarettes are the most widely used nicotine product in the United States, with 2.1 million middle and high school students currently using e-cigarettes. Nearly 90 percent of these young e-cigarette users report using flavored products.

In June, the Department of Justice (DOJ) and the FDA announced the creation of a federal task force to combat the sale of illicit vaping products. The task force will involve multiple law enforcement partners, including the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Federal Trade Commission (FTC), to crack down on the distribution and sale of unauthorized e-cigarettes. If illicit products are found for sale, retailers will be required to remove them from shelves and may face significant criminal and civil fines.

FDA's Delay in Reviewing Marketing Applications for Vaping Products

The FDA has yet to complete the processing of millions of vaping product marketing authorization applications. The deadline of September 9, 2021, was set by the Maryland federal court, nearly four years ago. The FDA is behind schedule for its own completion of these applications by June 30, 2023.[3].

Health organizations are also criticizing the FDA for its failure to take action to remove illegal vaping products that are still on sale. Manufacturers continue to introduce thousands of illegal products onto the market without the required FDA approval. Most of these products are sold in attractive flavors and deliver massive doses of nicotine, according to health officials. In a letter Sent in May 2024 and signed by 78 public health, medical, educational, and community organizations, the FDA is asked to more frequently and severely sanction retailers who fail to comply with the law and continue to sell unauthorized vaping devices. The organizations point out that the Tobacco Control Act gives the FDA explicit authority to repeatedly prosecute a company, and that penalties can be as high as $1.2 million in a single proceeding. However, to date, the FDA has not repeatedly prosecuted companies for repeat violations. And fines for first-time actions have been relatively low, reaching $20,678, or just $2% of the possible penalty.

The signatories also said that sanctions should be taken against all parties in the supply chain: not only retailers but also manufacturers, importers and distributors.

©Tobacco Free Generation

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[1] Communicated, To Protect Ohio Youth, AG Yost Targets Sellers of Illegal Vapes, Ohio Attorney General, published July 9, 2024, accessed July 29, 2024

[2] Communicated, Ohio AG Campaign Targeting Illegal E-Cigarettes Marks Important Step to Protect Young People, Truth Initiative, published July 10, 2024, accessed July 29, 2024

[3] Communicated, FDA Reports Progress in Reviewing E-Cigarette Marketing Applications, But Must Step Up Enforcement Against Illegal Products that Harm Kids, CTFK, published July 23, 2024, accessed July 29, 2024