Major online retailers selling electronic cigarettes as smoking cessation products in USA

No electronic cigarettes (e-cigarettes) available in the United States have been approved by the United States Food and Drug Administration (FDA) to be marketed for smoking cessation, and any such approvals would only apply to a specific product rather than e-cigarettes as a class of products. Accordingly, any marketing of e-cigarettes that explicitly or implicitly states that they are for cessation assistance (or any other medical purpose) would violate the Federal Food, Drug, and Cosmetic Act.¹ However, in May 2019 searches of three top internet retailer websites (Amazon, Walmart, eBay²), we found numerous e-cigarettes identified explicitly or implicitly as cessation products. At Amazon.com some e-cigarettes and their accessories were found under the “Health and Personal Care > Health Care > Smoking Cessation” category (see Figure 1). Similarly, at Walmart’s retail website, e-cigarette products were found under the “Health / Heart Health / Quit Smoking” category. Ebay.com listed some e-cigarette products in the “Health & Beauty > Health Care > Smoking Cessation > Other Smoking Cessation” category. Importantly, some listings for the nicotine-containing e-cigarette products sold at these retail websites did not include the warning label “This product contains nicotine. Nicotine is an addictive chemical.” E-cigarette advertisements and the products depicted in these advertisements are required by the FDA to contain this warning.

Figure 1.

Screenshots of examples of electronic cigarette products categorized as “smoking cessation” or “quit smoking” products at www.amazon.com (panel A), www.ebay.com (panel B), and www.walmart.com (panel C). Arrows added to highlight the category used at each website.

In a 2017 rule,³ FDA attempted to draw clear lines for tobacco manufacturers and retailers regarding legal marketing claims versus illegal unauthorized drug claims. Specifically, the rule indicated that e-cigarettes marketed as smoking cessation products will be “subject to regulation as drugs, devices, or combination products”³ and any unsubstantiated drug claims are prohibited by the Federal Food, Drug, and Cosmetic Act.¹ Categorizing e-cigarette devices at retail websites as “smoking cessation” products appears to violate the rule and the underlying law. This categorization of e-cigarette products at retail websites could be compared to placing e-cigarettes in departments or on shelves labeled “smoking cessation products” in brick-and-mortar stores. One might expect to find FDA-approved smoking cessation aids such as the nicotine patch, gum, or lozenge on these shelves, but the retail websites included in our search used the same “smoking cessation” categories for FDA-approved smoking cessation products and for e-cigarettes that are not approved for this marketing.

While FDA has conducted hundreds of thousands of inspections at brick-and-mortar retail locations and has taken some enforcement actions against online retailers, it is possible that surveillance of online retailers is less robust than the brick-and-mortar retailer inspections program. Additionally, the retailer enforcement actions appear to focus on sale of e-cigarettes to minors.⁴ Our searches indicate that major online retailers may be in violation of FDA regulations for their categorization of e-cigarettes as smoking cessation products and for omitting required warnings. Surveillance of retailer compliance may need to consider product placement, which is a key part of retail tobacco marketing,⁵ in an online context. Additionally, with growing e-commerce, national retailer inspections programs may need to bring additional focus to online retailers to prevent unlawful marketing of e-cigarettes as smoking cessation products.