From Concerned Physicians to Lawmakers: Legislation Addressing the Teenage Vaping Epidemic

E-cigarettes are the most commonly used tobacco product among middle and high school students.¹¹ Highly addictive and higher concentrations of nicotine than combustible cigarettes, e-cigarettes are a critical threat to the health and safety of adolescents. Nicotine in particular has serious adverse effects on the developing brain and respiratory system.

The 2022 National Youth Tobacco Survey demonstrates that while the use of e-cigarettes has declined from its 2019 peak, 14.1% of high school students and 3.3% of middle school students still report using e-cigarettes.⁶ Of these students, 27.6% reported daily use.⁶ Most commonly used e-cigarettes were disposable, one-use devices (57.2% high school students, 45.8% middle school students).⁶ More than 84.8% of teenagers report using flavored e-cigarettes, including fruit, candy, dessert, and menthol varieties.⁶

Given the magnitude of this situation and the known long-term effects of e-cigarettes, healthcare providers must look beyond individual counseling to political advocacy in an effort to make widespread change. Federal and state efforts to restrict adolescent use, limit unlicensed e-cigarette sales, and bar marketing to adolescents have thus far been modest, and achieved only limited success.

The U.S. Food and Drug Administration’s (FDA’s) attempts to regulate e-cigarettes has been slow and resulted in minimal success. In 2016, the FDA asserted that e-cigarettes met the definition of a “tobacco product” under the Tobacco Control Act. Based on that finding, the agency required companies to apply to continue marketing any new or existing e-cigarette products. Out of almost 6.7 million applications, the FDA has denied nearly one million.¹⁰ In one widely covered decision, the agency even denied approval for all JUUL products marketed in the U.S. JUUL immediately filed a lawsuit however, and successfully pushed the FDA to reverse course.

This marketing review process was also used by the FDA to ban all flavors except for tobacco and menthol. This ban only applies to cartridge/pod-based e-cigarettes, so does not cover the increasingly popular disposable and refillable devices. We also know that menthol flavors appeal to teens and could become more attractive if they are all that is available. The tobacco industry has responded by offering more products not covered by the current restrictions.

Congress passed Tobacco 21 legislation raising the minimum legal sales age (MLSA) for tobacco products from 18 to 21 years old. Tobacco 21 provided no exemptions and applied to all tobacco products, including e-cigarettes. States may pass more restrictive laws, but either way, federal law requires states to demonstrate that retailers are complying with the new federal standard. Currently, 40 states have increased their MLSA age to 21 to match the federal law.¹⁶ Missouri is not one of them.

In the absence of robust federal oversight, e-cigarette regulation has largely been left to the states. Seventeen states have no licensing requirements to sell e-cigarettes over the counter.¹⁵ Twenty states have no special tax on e-cigarettes that may discourage use.¹⁵ And e-cigarettes are widely advertised on television and the internet, as only a few states have passed their own marketing restrictions

Missouri does not define e-cigarettes as a “tobacco product.” The state MLSA is 18, and legislation to increase that age has not made it out of committee. Missouri does require a license to sell e-cigarettes, but has no special tax for e-cigarettes/vaping products.¹³ Local efforts to impose e-cigarette restrictions have fallen short.

As medical professionals, we have a unique role to play in the health of our communities. We must be mindful of that role in combating the vaping epidemic while we look for ways to advocate not only in our medical facility, but in the halls of political power.