R. J. Reynolds Tobacco Company, which is the second-largest tobacco company in the United States, has filed a U.S. International Trade Commission (ITC) complaint1“Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest,” Federal Register, [Online]. Available: https://www.federalregister.gov/documents/2023/10/19/2023-23045/notice-of-receipt-of-complaint-solicitation-of-comments-relating-to-the-public-interest against several popular vape manufacturers, distributors, and retailers. In the complaint, R. J. Reynolds asked the ITC to issue “a general exclusion order, a limited exclusion order, cease and desist orders, and impose a bond” on businesses that already sell or intend to sell illegal vaping products.
On February 6th, 2020, the Food and Drug Administration (FDA) banned the sale of most flavored e-cigarettes, barring tobacco and menthol flavors. To this date, the FDA has only authorized 23 tobacco-flavored e-cigarette products2M. Perrone, “5 takeaways from the AP’s report on Chinese disposable e-cigarettes flooding the US market,” AP News, 26 June 2023. [Online]. Available: https://apnews.com/article/fda-vapes-vaping-elf-bar-juul-5e45cf57dc78f6b94213047c97b10f7e and devices. Despite this law, flavored e-cigarettes are still widely available in the U.S. According to data that The Associated Press obtained from the analytics firm IRI, the number of unique e-cigarette devices sold in the U.S. has reached 9,0003M. Perrone, “5 takeaways from the AP’s report on Chinese disposable e-cigarettes flooding the US market,” AP News, 26 June 2023. [Online]. Available: https://apnews.com/article/fda-vapes-vaping-elf-bar-juul-5e45cf57dc78f6b94213047c97b10f7e, meaning it has nearly tripled since 2020. Chinese manufacturers are to blame for the massive increase in devices, but the FDA is equally responsible for monitoring the vape products that come into the country.
On the face of it, R. J. Reynolds’ ITC complaint is a positive step toward enforcing the rules set out by the FDA. But this is one of the many actions R. J. Reynolds has taken to eradicate competitor’s products from the market. R. J. Reynolds produces Newport, Camel, and Pall Mall cigarettes as well as Vuse e-cigarettes. According to British American Tobacco, which acquired Reynolds American Inc in 2017, Vuse finished 2022 with a value share of 35.9%4“Vuse: Our leading Vapour product,” British American Tobacco, [Online]. Available: https://www.bat.com/group/sites/UK__CRHJSY.nsf/vwPagesWebLive/DOCS4JJY, making it the most popular e-cigarette brand in the USA.
Mi-One Brands, Pastel Cartel, and EVO Brands – which manufacture Lost Mary, Esco Bars, and Puff Bar respectively, are just a few of the names mentioned in the complaint. R. J. Reynolds is eager to fill the void that these brands leave behind. “Reynolds has the capacity to replace any increase in demand if the Accused Products were excluded from importation,” says the complaint.
Interestingly, the FDA recently denied marketing rights5“FDA denies marketing of six flavored Vuse Alto e-cigarette products following determination they do not benefit public health,” U.S. Food and Drug Administration, [Online]. Available: https://www.fda.gov/news-events/press-announcements/fda-denies-marketing-six-flavored-vuse-alto-e-cigarette-products-following-determination-they-do-not for six flavors of R. J. Reynolds’ most popular e-cigarette, the Vuse Alto. The Premarket Tobacco Product Applications (PMTAs) for the three menthol-flavored and three mixed-berry-flavored vapes were denied on the basis that they “lacked sufficient evidence to demonstrate” that they “would be appropriate for the protection of public health.”
R. J. Reynolds’ ITC complaint highlights the FDA’s ineffectiveness in stemming the tide of illegal vapes into the country. We have already reported that the FDA has failed to enact repercussions on brands that sell illegal vapes, so we have to wonder how the FDA will respond to this ITC.
