Law-abiding retailers demand action on illegal vape market

Vaping has gained quick popularity among Nevada teens, but there are also inequities regarding which high school students are most at risk. (Photo: Joe Raedle/Getty Images)

Policy, politics and progressive commentary

As the state executive of the Nevada Petroleum Marketers and Convenience Store Association, I represent businesses in — and serving — convenience stores. Our members seek to provide a positive impact not only on the state’s economy, but also on the well-being of the communities we serve. Today, we face a significant and persistent problem: The marketplace is saturated with illegal vape products , and there is an alarming lack of clarity and action from the Food and Drug Administration (FDA) to address this issue.

Making matters worse, it seems like the FDA can’t even acknowledge this problem exists. At a May 15 National Association of Tobacco Outlets meeting, I and others were stunned to hear FDA’s Center for Tobacco Products Director Brian King claim that “illicit markets aren’t real.” This assertion is completely disconnected from the reality retailers face in Nevada and across the country. The presence of illegal vapes is not a matter of opinion; it is a well-documented fact. I’d invite Director King to walk into any vape shop in Nevada (or anywhere else in the country) and tell us that the hundreds of products he sees for sale there have been reviewed and authorized by his agency. He can’t.

This disconnect between regulatory bodies and on-the-ground realities exacerbates the challenges our members encounter daily because the illusion that the illicit market is not a significant threat only serves to delay necessary action.

To understand the scope of the illicit market, one has to look no further than a 2020 Federal Trade Commission report , which identified significant increases in the sale of unauthorized vaping products. By one estimate, the amount of vaping devices has tripled in the U.S. since 2020, driven by illicit disposable vapes. And despite this rapid increase, to date, FDA’s response has been minimal — a few warning letters and occasionally seized quantities of illicit vapes — actions that won’t make a significant dent in this issue.

It’s time for the Center for Tobacco Products director to stop pretending this isn’t an issue and to ramp up enforcement efforts instead of taking small, inconsequential steps that fail to address the problem meaningfully. Ignoring the problem does not make it go away. Instead, we need the FDA to take several immediate actions to combat this crisis effectively.

Authorize more products: One of the primary reasons we find ourselves in this situation is the FDA’s failure to authorize vaping products adults want. The FDA has failed to review all of the submitted premarket tobacco product applications filed nearly four years ago. And of the millions of product applications submitted, only 23 have been authorized by the agency.

This slow-moving process to approve products, which, according to an independent investigation , has been marred by political considerations instead of following the science, has created an environment where legitimate options are scarce, and consumers have turned to illicit alternatives. The FDA must expedite the review and approval process for products that meet safety and quality standards, thus providing consumers with legal choices and reducing the demand for illegal items.

Step up enforcement: The FDA must collaborate closely with the Department of Justice and Customs and Border Protection to shut down the operations responsible for producing and distributing illegal products. This means not only targeting small-time sellers but also going after the more extensive networks that manufacture and supply these goods. Strong, coordinated enforcement actions will deter illegal activity and help to protect the legitimate market.

Work with trade associations: Our association and others like it have repeatedly extended our hands to offer assistance and insight into the market’s realities. Unfortunately, our efforts have been met with minimal response. The FDA must engage with industry stakeholders who are eager to contribute to the solution. By fostering a collaborative relationship, we can develop practical and effective strategies to combat the illicit market.

In Nevada and other states, the evidence is clear: Illegal products are rampant and regulatory measures have been insufficient. The FDA can continue to bury its head in the sand and pretend the problem does not exist, but that approach only leads us further into crisis. The illicit market is a massive problem that demands immediate and decisive action. It’s time for the FDA to acknowledge this reality and to work diligently alongside industry partners to create a compliant, more regulated vapor market.

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