Justice Dept., FDA Announce Crackdown on Illegal E-Cigarette Sales

WASHINGTON — The Justice Department and the Food and Drug Administration are the leads on a new multi-agency task force intended to crack down on the illegal distribution and sale of e-cigarettes.

Also participating in the task force are the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Marshals Service; the U.S. Postal Inspection Service; and the Federal Trade Commission.

The intent of the new collaboration is to “bring all available criminal and civil tools to bear” against those profiting in the illicit e-cigarette market, individuals and entities seen as the cause of widespread nicotine addiction among American youths.

In a press release the Justice Department said additional agencies may join the task force in the coming weeks and months. 

“Unauthorized e-cigarettes and vaping products continue to jeopardize the health of Americans — particularly children and adolescents — across the country,” said Acting Associate Attorney General Benjamin Mizer. 

“This interagency task force is dedicated to protecting Americans by combatting the unlawful sale and distribution of these products. And the establishment of this task force makes clear that vigorous enforcement of the tobacco laws is a government-wide priority,” he said.

Deputy Assistant Attorney General Arun G. Rao of the DOJ’s Civil Division’s consumer protection branch, said curbing the widespread availability of illegal e-cigarette products is a top priority of the Justice Department’s consumer protection efforts. 

“Together with our law enforcement partners, we look forward to advancing aggressive and innovative solutions to the unique and constantly evolving problem of illegal vaping products,” Rao added in a statement.

Dr. Brian King, director of the FDA’s Center for Tobacco Products, said the “all government” approach to the problem, including the creation of the new task force, “will bring the collective resources and experience of the federal government to bear on this pressing public health issue.”  

The 2023 National Youth Tobacco Survey found that about 2.1 million youths reported currently using e-cigarettes, which reflects a considerable decline from 5.3 million youths in 2019. 

However, 10% of high school students and almost 5% of middle school students reported currently using e-cigarettes, and more than one in four of those e-cigarette users reported daily e-cigarette use. 

Manufacturers, distributors and retailers market a wide range of products that appeal directly to school-age users, such as candy and fruit flavors, some of which come in devices designed to be easily concealed. 

According to the Centers for Disease Control and Prevention, nicotine poses unique dangers to young people. In addition to being highly addictive, nicotine can harm the developing adolescent brain, which continues to develop until about age 25. Young people who use nicotine may also be at risk for addiction to other drugs.   

The federal task force will focus on investigating and prosecuting new criminal, civil, seizure and forfeiture actions under the PACT Act; the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking Prevention and Tobacco Control Act; and other authorities. 

Violations of these statutes can result in felony convictions and significant criminal fines and civil monetary penalties. They can also result in seizures of unauthorized products, which can help to make illegal e-cigarettes less accessible, including to young people. 

Through their participation in the task force, USMS will help the FDA and the department carry out seizures of unauthorized e-cigarettes within the United States.  

The Justice Department is also collaborating with ATF and USPIS on potential criminal and civil enforcement actions under the Prevent All Cigarette Trafficking Act of 2009. 

The PACT Act requires online sellers of these products to register with ATF and to verify the age of purchasers both at the point of sale and the point of delivery, as well as to comply with tax collection provisions and state and local laws.

The FDA has authorized the sale of 23 specific tobacco-flavored e-cigarette products and devices. These are the only e-cigarette products that currently may be lawfully marketed and sold in the United States. 

To date, the FDA has issued more than 1,100 warning letters to manufacturers, importers, distributors and retailers for illegally selling and/or distributing unauthorized new tobacco products, including e-cigarettes, and has filed civil money penalty complaints against more than 55 manufacturers and 140 retailers for the manufacture and/or sale of unauthorized tobacco products. 

In addition, the FDA and the Justice Department have obtained injunctions against six manufacturers to stop them from manufacturing and selling unauthorized e-cigarette products.

Dan can be reached at [email protected] and @DanMcCue