Using data against the FDA’s attempts to remove flavors from convenience stores

By iSEE’s Marketing Director, Melissa Vonder Haar

Well here we go again. Dr. Scott Gottlieb may be leaving the FDA, but he’s planning to leave one hell of a legacy for the vaping industry and convenience channel (or really all traditional retail outlets): days before he announced his resignation as commissioner of the FDA, Gottlieb submitted plans to the White House to move forward with banning flavored vaping products from non-age-restricted retail outlets, while allowing these products to be sold at vape shops, tobacco shops and even online.

This, according to Gottlieb and the like, will solve the youth vaping epidemic

If only it were so easy.

Allow me to indulge in a personal story that exemplifies the problem. The teenage son of a good friend was recently busted at his high school for selling a certain popular vaping device that I won’t bother to name. He wasn’t buying these at his local negligent convenience store, as the FDA would like you to believe. He sometimes bought online, but usually had an 18-year-old friend buy for him—why pay for shipping was his attitude.

When he got caught, he said to his parents “what’s the big deal? It’s not like I was selling marijuana…this isn’t even illegal.”

The FDA would be quick to remind me that my story is just an anecdote. And they can’t regulate off anecdotal evidence. But the agency’s own evidence (or lack thereof) supports this very notion. Here are four points I plan on including when I reach out to the White House and my Congressional representatives:

  1. Where Minors Get E-Cigs: I’ve made this point before, but it’s worth repeating: the FDA-sponsored Population Assessment of Tobacco and Health (PATH) Study showed only 11% of the 15-to17 year olds surveyed attempted to purchase electronic cigarettes at a retail (brick and mortar or online) outlet. 89% of the time, they got their vaping products from a social source. Meaning in the very best case, the FDA’s proposed flavor ban will prevent one in every 10 kids from getting an e-cigarette. Not exactly solving the epidemic.
  2. The Convenience Industry’s Record with Age-Restricted Products: It’s a favorite point of NACS that the convenience industry checks more IDs-per-day than the TSA. The We Card program was founded by retailers and suppliers—in fact, the majority of the convenience made e-cigarettes an age-restricted product before state governments or the FDA required them to do so. The industry has long practiced age-verification for tobacco, beer, wine and spirits and has been a part of the solution of keeping age-restricted products out of the hands of minors…until now, specifically with flavored vaping products?
  3. What the Agency’s Data Actually Shows: Despite the PATH data and the industry’s compliance record, the agency wants the public to believe that banning flavors from traditional retail outlets will solve everything. To support that claim, the FDA released what I’d describe as a smear campaign, claiming a number of major retail chains have had as high as a 44% failure rate on compliance checks. The National Association of Tobacco Outlets recently clarified how misleading that stat was: the 44% figure was a cumulative number on compliance rates since 2010. Meaning a retailer with that aggregate 44% violation rate over the nine-year period could have, on average, experienced a 95% successful passing rate each year. Which is actually a pretty good rate.
  4. Where Are the Other Compliance Rates?: The data the FDA is NOT sharing is the comparative compliance rates for tobacco shops, vape shops or online outlets—despite numerous requests from retailers and retail associations, including NACS. If the agency genuinely believed that convenience, drug and other traditional outlets were responsible for the youth e-cig epidemic, I’d think they’d be shouting the excellent compliance records of the retailers they WILL allow to continue to sell flavors from the rooftops. Yet the agency has remained conspicuously silent on that front.

Youth usage—whether it be e-cigs, cigarettes, alcohol or drugs—is not an easy issue to address. It never has been. And I’m not a regulator: I don’t pretend to have the answer.

But the data shows that, while banning flavors from a huge chunk of the retail population may be an easy answer, it will not be an effective one. Which should concern all of us. Because at the end of the day, I do believe that the FDA is serious about wanting to solve the problem of youth usage. So when wiping out flavors at convenience stores doesn’t work, they’re going to look for another “easy” solution. And it won’t be good for any of us.

NACS encourages all parties to reach out to their representatives to ask the White House to stop the FDA’s assault on the convenience industry. More information on how to engage can be found here