Fourteen senators, including Senate Minority Whip Dick Durbin (D-IL), have sent a letter to FDA criticizing the agency for what it characterizes as lax enforcement that has allowed children to get addicted to flavored vape products in recent years.  In particular, the letter calls out flavors like gummy bear, cotton candy, peanut butter cup, and cookies ‘n cream as examples of flavors that appeal to children.  The letter poses a number of pointed questions as to how FDA will seek to curb e-cigarette use in children moving forward and is particularly critical of FDA’s 2017 decision to delay its regulation of e-cigarette products and flavorings from 2018 to 2022.

The letter follows on the May 2018 joint warning letters that the U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) sent to 13 companies marketing flavored nicotine-containing e-liquids that resembled foods appealing to children (e.g., juice boxes, candies, cookies).  In the letter, the senators describe this enforcement initiative as a “modest” step to address e-cigarette use in children.  The letter states “considerably more must be done to address this looming wave of youth tobacco addiction aided, in part, by FDA inaction.”

Meanwhile, FDA is in the process of determining whether and how to regulate flavored tobacco products, including e-liquids, pursuant to its authority under the Tobacco Control Act.  Earlier this year, FDA published an Advanced Notice of Proposed Rulemaking on the regulation of flavored tobacco products, comments for which were due by July 19, 2018.  Thousands of comments have been submitted, including many comments from adult consumers, as well as scientific evidence claiming that flavored e-liquids provide a public health benefit by making it easier for cigarette smokers to transition to vaping.

The senators close by stating that companies that wish to use flavors in their tobacco products “should be required to demonstrate…that use of flavors will benefit public health—today, not four years from now.”  The letter arguably puts pressure on FDA to take a tougher stance on enforcement against e-liquid companies and could prompt FDA to take additional enforcement against flavored e-liquid manufacturers.