Letter to FDA Commissioner Califf: Close the E-Cigarette Loophole

Dr. Robert Califf

The Food and Drug Administration

10903 New Hampshire Avenue

Silver Spring, MD 20993

Dear Commissioner Califf,

I am writing to you regarding underage nicotine use, an issue with which I know you are familiar. First and foremost, I want to acknowledge your expertise, experience and achievements as a medical professional. I don’t believe the lack of action from your FDA is rooted in a misunderstanding of the science, but a misunderstanding of the severity and prevalence of this issue plaguing our nation. The oversaturation of candy-flavored, disposable electronic nicotine delivery systems (ENDS or ‘vapes’) is waging nothing short of chemical warfare on our kids – comparable to the influx of Fentanyl trafficked by cartels.

As more and more headlines regarding disposable vapes in the hands of our children came to my attention, I decided to assess the situation for myself. I visited a few gas stations, convenience stores and smoke shops in the Dallas metroplex to see for myself what products are available and how they’re being marketed. To put it simply, what I found was both appalling and alarming. Despite new and previous regulations prohibiting candy-like flavors, I was immediately greeted by a wall of bright, fluorescent boxes of these disposable vapes - half of which contained the word ‘candy’ in their flavor descriptions. Not only are these blatantly marketed towards our children, they exist because of a loophole in previous regulation which was originally designed to prohibit the sale of these products. I’ve included an image below for reference.

Upon reviewing these products, you will quickly notice a few things. Both are packaged in colorful and enticing patterns. Additionally, the names of the products, ‘Sili Box’, and ‘Pod King’ are lighthearted and conjure up images of fun and social status. Furthermore, the flavors, ‘Candy Pop’ and ‘Watermelon Candy’ are not attributes of products marketed to adults over the age of 21. Clearly these products are being marketed towards our children.

At the United States Hispanic Business Council (USHBC), we believe every consumer has the right to purchase any responsibly marketed and legal product.That said, your own study found that over 2.5 million middle and high school students currently use vapes and over half of these students reported using disposables. Among Hispanic students, this includes 20% of high-schoolers and a shocking 10% of middle-schoolers. With underage vaping up over 2000% in the past few years, it’s apparent these products are waging war on our children.

As the leading advocate for our nation’s 4.5 million Hispanic-owned businesses, we are aware of the impacts that banning these products may have on a subset of our constituents. However, we believe that America is a place of commerce with a conscience, and that profit is not worth the health of our children.

As I mentioned, a Trump-era policy banning flavored, non-tobacco, non-menthol cartridge-based vapes inadvertently created a loophole that allowed many disposable vaping products to thrive. These disposable vapes are able to remain on the market simply because they are to be thrown away after their use, as opposed to replenished with a new cartridge.

I believe HR 901 The Disposable ENDS Product Enforcement Act of 2023, authored by Congresswoman Cherfilus-McCormick, provides a valuable starting point and framework for closing this loophole. Citing the prevalence amongst our youth, and the fact that these products are almost entirely manufactured in China, the congresswoman calls for prohibiting their sale. To my understanding, the FDA exists to protect our nation and ensure that the food and drugs consumed by our people are safe and legal. Closing this loophole presents an opportunity for you to decisively fulfill your duty. I strongly urge you to act on this issue before moving forward with yet another ban on products that are legitimately produced and marketed as healthier alternatives for adult smokers.

Sincerely,

Javier Palomarez

President & CEO

United States Hispanic Business Council

javier@ushbc.com | (202) 787-8369