States Continue Crackdown on Illicit Vapes

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Trump-aligned group launches 5-figure ad buy urging states to take action against unauthorized e-cigarettes

As part of a coordinated coast-to-coast crackdown, 10 state attorneys general have announced enforcement actions, including investigations and litigation to combat the illicit e-vapor market.

Connecticut Attorney General William Tong on Jan. 16 served civil investigative demands on 12 Connecticut smoke shops and convenience stores and two wholesalers found selling illegally imported disposable e-cigarettes. 

“Our investigation is focused on identifying the suppliers and distributors of these illicit products,” Tong said.

Flavored nicotine products are largely manufactured and imported illegally into the United States from China, the attorney general said.

“The companies who manufacture and distribute these products have failed to participate in the FDA’s mandated marketing order process,” he said. 

The number of unique disposable products has gone up 1,500 percent since 2020, Tong said in a statement.

In addition to Connecticut, California, Illinois, Hawaii, Minnesota, New Jersey, New York, Vermont, Ohio and Washington D.C. announced they are enforcing their respective licensing and consumer protection laws to go after the companies responsible for importing, distributing, selling, and marketing flavored disposable e-cigarettes. 

Through the enforcement of each state’s tobacco and consumer protection laws, Illinois Attorney General Kwame Raoul said he is committed to continuing to collaborate with other state attorneys general on a bipartisan basis. 

“My priority remains holding accountable those who have and continue to fuel the youth vaping epidemic,” Raoul said.

Raoul filed a lawsuit on Jan. 16 against the entities responsible for the distribution of one of Illinois’ bestselling disposable vape brands, Posh. Posh products come in countless fruit and candy flavors, including Gummy Bear Ice, Ice Cream Cone and Jelly Berry. 

Raoul said it has also opened an investigation into Midwest Goods, one of Illinois’ largest e-cigarette distributors. The Illinois attorney general’s office said the investigation is related to the company’s distribution, sales and marketing of vaping products.

Enforcement activity

To date, the Food and Drug Administration (FDA) has authorized 34 e-cigarette products and devices. The FDA took charge of regulating e-cigarettes in 2016.

The FDA on Jan. 3 updated two import alerts, 98-07 and 98-06. These updates separate imported electronic-cigarette products from all other tobacco products, the agency said. The updates to Import Alert 98-07 reinforce that any unauthorized e-cigarette product imported into the United States may be subject to detention without physical examination and refused admission by FDA, the agency said.

Last month the agency said the U.S. Homeland Security Investigations and U.S. Customs and Border Protection seized more than 628,000 unauthorized e-cigarette products from a warehouse in Miami. 

The seized products valued at more than $7 million included mostly flavored, disposable e-cigarettes, including the Geek Bar brand, as well as some packs, kits and batteries. 

The FDA's Center for Tobacco Products Director Brian King said an all-government approach is critical to preventing unauthorized e-cigarettes from entering the United States and that “we remain committed to continuing to work with our federal partners to continue to combat the entry of these illegal products head on.”

On Feb. 10, the Protecting America Initiative, which describes itself as a coalition of “concerned Americans and public policy experts dedicated to combating the growing influence of communist China in the United States,” launched a new digital ad urging state legislators to follow President Donald Trump’s lead in cracking down against illicit vapes produced in China that are being sold illegally in America. 

The spot, “Trump was Right,” is backed by a five-figure buy and will run on digital platforms in targeted markets across the country, the coalition said in a statement.

The video calls out the states’ approach to the illicit market by telling viewers that “states are taking action against illicit Chinese vapes. More state leaders can act now to fight with Trump against illicit Chinese vapes,” 

“The ad reminds viewers that Trump in 2019 was right about the dangers of illicit Chinese vapes and of Biden’s failure to protect Americans from these unregulated illicit products,” the coalition said in a statement. “It also details how states need to stand with President Trump and take action against illicit Chinese vapes.”

In 2019, Trump called vaping a “problem,” with his administration saying it would go after all flavored vapes. In 2020, Trump revised his all flavored vape action with the FDA barring most flavors, including fruit and mint, from unauthorized cartridge-based e-cigarettes until companies go through the premarket tobacco application (PMTA) process.

Javier Palomarez, president and CEO of the United States Hispanic Business Council (USHBC), in a March 2023 letter to former FDA Commissioner Dr. Robert Califf, said that 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.”

Profit challenges

The strong illicit market is also challenging tobacco companies’ e-vape business. 

Billy Gifford, Altria’s CEO, told investors on the company’s fourth-quarter earnings call on Jan. 30 that the company estimates that the e-vapor category grew by approximately 30% in 2024 and that illicit products represent more than 60% of the category.

“The primary driver of industry and smoke-free growth continues to be the widespread availability of illicit disposable e-vapor products,” Gifford said, which he added is “jeopardizing the long-term opportunities for tobacco harm reduction.”

London-based British American Tobacco (BAT) published preliminary full-year results for 2024 on Thursday saying “our targeted investments have strengthened the business, despite a challenging macro-economic backdrop and a growing presence of illicit single-use vapor products.”

Kathy Crosby, Truth Initiative CEO and president, said in a statement last November that “over 80% of e-cigarettes are on the market illegally.” 

Crosby said that while enforcement is “vital to ending the youth e-cigarette crisis, retailers also must do the right thing, take responsibility to protect their young customers, and remove all illegal products from store shelves.”