The FDA announced that e-retailers of flavored electronic vaping products need to ensure their purchasers are of legal age to use the product with 'heightened measures' or cannot sell their products online.

Online retailers that sell flavored e-cigarettes are about to face more regulations from the U.S. Food and Drug Administration.

The FDA on Thursday announced it is requesting the FDA’s Center for Tobacco Products change its compliance policy to have “heightened practices” for age verification for flavored e-cigarette and vaping products that are sold online. The regulations would be for all flavored products except mint, tobacco and menthol flavors.

The goal of the policies is to make nicotine products less accessible and less appealing to children, said FDA commissioner Scott Gottlieb in a statement. For the past few months, Gottlieb has warned the public of the increase in e-cigarette use among high school- and middle school-aged teens and warned the industry that more regulations were coming in November.

“The data makes unmistakably clear that, if we’re to break the cycle of addiction to nicotine, preventing youth initiation on nicotine is a paramount imperative,” Gottlieb said.

Although e-cigarettes don’t contain tobacco, most still contain nicotine, which is highly addictive and can harm brain development. E-cigarette regulations vary by state, but shoppers have to be at least 18 to buy these products.

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What the FDA announcement means

Prior to Nov. 15, online retailers could sell all flavors of e-cigarettes online as long as the seller verified in any way that the purchaser was of legal age. However, some verification tools are easy to circumvent, such as simply clicking a box stating they are of age.

Today, the FDA says that if an online retailer were to sell a vape flavor—other than mint, menthol or tobacco—the age verification process has to have “heightened measures.” The FDA did not outline what “heightened measures” are, but said it will soon release best practices so that merchants can “quickly adopt them,” according to the FDA.

If a merchant sells flavored vapes, doesn’t have heightened age verification and currently has not submitted a pre-market tobacco application to the FDA, it cannot sell its flavored products online. Once the FDA receives the pre-market tobacco application and communicates to the merchant its products are OK, or the merchant adds stricter age verification to its site, then it can start selling flavored vapes.

The FDA is cracking down on flavored vapes because of their appeal to the young consumers. Roughly two-thirds (67.8%) of children ages 12-17 who vape use flavored e-cigarettes, and roughly 20% use mint- or menthol-flavored vape, according to the FDA and the Centers for Disease Control and Prevention data from the nationally representative 2018 National Youth Tobacco Survey released Nov. 15. In contrast, 41% of adult e-cigarette users use mint or menthol flavors.

How e-cigarette manufacturers feel about the regulations

E-cigarette manufacturer Juul Labs Inc., which accounts for almost one in three e-cigarettes sales in the U.S., according to the CDC, says the FDA and Juul have a common goal of preventing the youth from initiating on nicotine.

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“We launched flavors like mango, fruit, creme and cucumber as effective tools to help adult smokers switch from combustible cigarettes, and we do not sell flavors like Gummy Bear or Cotton Candy, which are clearly targeted to kids, ” Juul Labs CEO Kevin Burns said in a statement on its website.

Juul will still be able to sell its flavors of products online as it has heightened age verification. To make a purchase on Juul.com, purchasers must provide their name, birthday, address and the last four digits of their social security number. This is verified by a vendor and then cross-referenced with public record to confirm age.

In addition, Juul is adding other measures, such as two-factor authentication, which further verifies a shopper’s identity via a text message code. It also will add a real-time photo requirement to match a user’s face against an uploaded ID, according to Juul’s website.

E-liquid manufacturer Vape Wild says the FDA’s announcement is “encouraging” and supports the FDA in taking steps to reduce underage vaping, says Lacey Krusmark, customer service representative. Vape Wild is No. 943 in the Internet Retailer 2018 Top 1000.

Flavors—excluding tobacco, mint and menthol—comprise 87.6% of VapeWild.com’s products. However, Vape Wild believes its age verification system is extensive and will live up to heightened standards, Krusmark says. VapeWild.com uses age verification vendor IDology Inc., which verifies customers’ age via public records, and if that fails, customers must submit a valid form of ID, such as a driver’s license or passport.

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“Once these ‘best practices’ are released and reviewed by our compliance department, we’ll know for sure if any change is needed,” Krusmark says. “If regulation is updated, we’ll make any changes necessary to comply in a timely manner.”

“We have added extensive age verification processes to our checkout procedure to ensure no underage persons are able to purchase and end up in possession of our products. We, like Dr. Gottlieb and parents around the globe, do not want our products in the hands of impressionable teenagers or children,” she adds.

Similarly, 90% of the vape sales on Vaping.com are from flavored e-liquids, says Neil Mclaren, co-founder at Vaping.com. The retailer also has a robust age verification system in place and doesn’t think the announcement will have “any tangible effects to our current business,” Mclaren says. 

“Admittedly, it’s a challenge to get a checkout to function smoothly with [the age verification software], but ultimately we believe the best chance to eliminate underage sales lies in digital ID verification,” Mclaren says.

Increase in vape use among children

The number of high schoolers who use e-cigarettes has increased 78% in 2018 from 2017, according to the CDC survey. What’s more, 27.7% of high school e-cigarettes users say they have vaped on 20 or more days in the past month. The FDA estimates that 3.05 million high school students use e-cigarettes or 20.8% of all high school students.

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For middle schools, use has increased 48% year over year, reaching 570,000 students, or 4.9% of all middle school students. In total for both middle schoolers and high schoolers combined, 3.6 million children now use e-cigarettes, according to the survey.

Plus, a youth who first tries a flavored tobacco product has a higher likelihood of current tobacco use compared with those who first tried an unflavored product, according to the Population Assessment of Tobacco and Health Study.

What’s more, overall tobacco use has also increased 38% year over year for high school students, to now 27.1% of all high school students and overall tobacco use increase 29% for middle school student to now 7.2% of all middle school students. This reverses the positive decline over the last few years, according to the FDA.

“I will not allow a generation of children to become addicted to nicotine through e-cigarettes,” Gottlieb says. “We won’t let this pool of kids, a pool of future potential smokers, of future disease and death, to continue to build. We’ll take whatever action is necessary to stop these trends from continuing.”

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