Vaping companies have been given 30 days to stop manufacturing, distributing and selling unauthorized flavored cartridge-based vaping products that appeal to kids, such as fruit and mint flavors, or face enforcement actions by the Food and Drug Administration (FDA). The rule does not apply to tobacco or menthol vape products.

juul pods flavors 375x210 Manufacture, distribution and sale of flavored vape products banned“The United States has never seen an epidemic of substance use arise as quickly as our current epidemic of youth use of e-cigarettes. HHS is taking a comprehensive, aggressive approach to enforcing the law passed by Congress, under which no e-cigarettes are currently on the market legally,” said HHS Secretary Alex Azar. “By prioritizing enforcement against the products that are most widely used by children, our action today seeks to strike the right public health balance by maintaining e-cigarettes as a potential off-ramp for adults using combustible tobacco while ensuring these products don’t provide an on-ramp to nicotine addiction for our youth. We will not stand idly by as this crisis among America’s youth grows and evolves, and we will continue monitoring the situation and take further actions as necessary.”

According to the 2019 National Youth Tobacco Survey on vaping, more than 5 million U.S. middle and high school students have used a vape device within the past 30 days, and among them, about 1.6 million vaped frequently – as much as 20 days or more within a 30-day period. One million of them reported vaping daily.

The final guidance lays out the Food and Drug Administration (FDA)’s enforcement priorities for “electronic nicotine delivery systems,” or ENDS, and includes both vape devices and e-liquids. The focus is on any flavored, cartridge-based ENDS product other than tobacco- or menthol-flavored ENDS products; all other ENDS products for which the manufacturer has failed to take adequate measures to prevent minors’ access; and any ENDS product that is targeted to minors or likely to promote use of ENDS by minors.

For all other products, including menthol-, tobacco-, and non-flavored ENDS products, the FDA will also prioritize enforcement in cases where the manufacturer fails to take adequate measures to prevent youth access.

Vaping companies, like JUUL, have faced harsh criticism for their marketing to youth and for the sharp rise in youth vaping in the U.S. The companies have also faced heat about an outbreak of vape-related lung injuries that have affected more than 2,500 people across the country, killing at least 55. In September, when the vape-related lung injury was at its peak, President Donald Trump announced he would outline a plan to ban the sale of most flavored vaping products including mint and menthol flavors. But two months later, Trump began to waver under the objections of lobbyists and political advisers who warned that making such a move might have political ramifications. In early January, the administration announced it would move forward with a ban of flavored e-liquids, but would allow menthol and mint flavors to remain on the market.

Beasley Allen lawyers Joseph VanZandt and Sydney Everett are handling cases involving injuries related to vaping. We are looking at cases involving adolescent addiction and injuries including seizures, strokes, lung problems, and cardiovascular problems related to the use of JUUL vaping devices.

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