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The FDA’s Anti-Free Market and Ineffective Vape Store Exemption

by Resurgent Guest Read Profile arrow_right_alt

The Food and Drug Administration (FDA) has been debating over the past few months on implementing changes to e-cigarette regulations in hopes of preventing minors from gaining access to vaping products. Unfortunately, the new policy that is expected to be announced by the FDA could actually make the teen vaping epidemic worse, not better. 

According to news reports, this week the FDA will potentially announce a new policy that bans the sale of flavored e-cigarettes, except in vape shops. But, as is often the case when unelected bureaucrats create policies as a result of knee-jerk reactions, there are some flaws in the potential regulation that could lead to the exact opposite outcome they intend. 

My biggest concern with the expected policy is the vape store exemption. Reporting has indicated that this exemption results from intensive lobbying from vape store owners across the country, who argue that a full-flavored e-cigarette ban will shatter many of their small businesses. But in carving out this exemption, the FDA would be promoting monopolistic measures that are anti-free market, and may actually lead to more teens vaping. 

The exemption for vape stores may lead to more teens vaping because according to research, teens are much more likely to buy their e-cigarette products from vape stores than other types of retail locations, like convenience or grocery stores. The 2018 National Youth Tobacco Survey, which the FDA often uses to support the need for a flavor ban, showed that 14.8 percent of middle and high school students under 18 got their e-cigarettes from vape shops. Whereas convenience stores only came in at 8%. 

When taken into account that there are more than 10 times as many convenience stores as vape stores, the average adult-only store is more than 100 times more likely to sell a vaping product to a minor.

In addition to the fact that this potential policy could make it so that more teens get access to e-cigarettes, if this exemption was truly designed to prevent job loss, the vape store exemption still doesn’t add up.

According to data, the convenience store industry expects losses of over $1 billion a year if this ban goes into effect, while their competitors will get a monopoly on selling flavored e-cigarettes. This loss translates to 65,881 employees losing their jobs or nearly 3 percent of the total convenience industry employment. To put this into context, there are only a total of 90,000 employees in the entire vape store industry. 

But apparently the FDA may think that some jobs are more worthy of saving than others. 

We all want to prevent teens from gaining access to e-cigarette products, and there are many common-sense solutions that could make this a reality. One such solution is for the Senate to pass the Preventing Online Sales of E-Cigarettes to Children Act. This bill would require an in-person ID check before any e-cigarette products that are ordered online are handed over. As it stands, these online purchases of vape products just get dropped off at the door, with no federal requirement for even a signature before receiving these products. 

Commonsense solutions like the Preventing Online Sales of E-Cigarettes to Children Act can help reverse the trend in teen vaping, without providing unfair competition in the marketplace. Republicans are supposed to support the free market, but giving vape shops a monopoly on selling flavored e-cigarettes products would clearly be the FDA picking winners and losers. It is even worse knowing that vape stores are more likely to sell these products to minors than other retail locations. 

Unfortunately, it appears that the FDA may move forward with this misguided attempt to solve the teen vaping epidemic. Unless of course, like the vaping industry, Republicans successfully speak out about this anti-free market policy that will cause more harm than good. 

Jesse Grady is a former Texas Republican National Committee (RNC) staff member.

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