Elf Bar, one of the most popular vape brands in the United States, has sidestepped the Food and Drug Administration (FDA) once again.
The FDA has battled against e-cigarette manufacturers and distributors since 2020 when it banned mint and juice-flavored pods and established Premarket Tobacco Applications1U.S. Food and Drug Administration, “Premarket Tobacco Product Marketing Granted Orders,” FDA, [Online]. Available: https://www.fda.gov/tobacco-products/premarket-tobacco-product-applications/premarket-tobacco-product-marketing-granted-orders (PMTAs) for all future e-cigarette products. In the past year or so, the FDA has targeted individual manufacturers with little success.
Despite many attempts to stem the flow of illegal e-cigarettes into the United States, plenty of vapes still make it across the border. As far back as 2021, U.S. Customs and Border Protection officers at Chicago O’Hare’s International Mail Branch seized 50,000 vape pens2Chicago Tribune, “Counterfeit ‘Rick and Morty’ vape pens among items seized in raids on Chicago smoke shops,” Chicago Tribune, Mar. 11, 2021. [Online]. Available: https://www.chicagotribune.com/news/breaking/ct-counterfeit-rick-and-morty-vape-pens-seized-20210311-5gn47mqdundsto5pykrf54yyqm-story.html, and there are many similar stories.
In May of this year, the FDA instructed customs officials to seize any and all incoming shipments of Elf Bar e-cigarettes. All Elf Bar products come from Shenzhen, China, which is the global manufacturing hub of vape products.
To bypass the FDA’s rules, Elf Bar has renamed itself. It is now known as EBDesign or EBCreate, although it is still colloquially referred to as Elf Bar. Any Elf Bar products that enter the United States are listed under one of these new names and, to add another failsafe, Elf Bar has listed different manufacturers on the packaging.
Now, any Elf Bar products that enter customs do not bear the name of a manufacturer that the FDA has previously targeted.
Elf Bar’s evasion tactic is flimsy, but it seems to have worked. More than six months on from the FDA’s attempt to ban imports of Elf Bars, the popular fruit-flavored product is still available all over the United States.
It is not surprising that Elf Bar is in the line of fire because it is a firm favorite among teens. The 2023 Annual National Youth Tobacco Survey3U.S. Food and Drug Administration, “Results from the Annual National Youth Tobacco Survey,” FDA, [Online]. Available: https://www.fda.gov/tobacco-products/youth-and-tobacco/results-annual-national-youth-tobacco-survey found that 2.1 million young people currently use e-cigarettes and that Elf Bar is by far the most preferred brand, with a whopping 56.7% of young people favoring it over other disposable brands.
One study even found that Elf Bar was the top-selling disposable vape brand in the United States4Truth Initiative, “U.S. e-cigarette sales climbed during 2020-2022,” Truth Initiative, [Online]. Available: https://truthinitiative.org/press/press-release/us-e-cigarette-sales-climbed-during-2020-2022 in December 2022. Considering the hold that Elf Bar has over vapers in the United States, it is understandable that the FDA warned customs officials about the brand. But the FDA’s tactics after the fact are very questionable.
When Elf Bar ignored and sidestepped the FDA’s ban in May, the FDA turned its attention to retailers. In June, it issued more than 180 warning letters to retailers of Elf Bar and Esco Bar e-cigarettes5U.S. Food and Drug Administration, “FDA inspection blitz leads to more than 180 warning letters to retailers for illegal sale of youth-appealing ELF BAR products,” FDA News & Events, [Online]. Available: https://www.fda.gov/news-events/press-announcements/fda-inspection-blitz-leads-more-180-warning-letters-retailers-illegal-sale-youth-appealing-elf-bar.
This strategy is interesting, and it makes us wonder whether the FDA has privately admitted defeat against Elf Bar manufacturers. By turning its focus to retailers, it has raised questions about the lack of consequences for manufacturers. Besides, even if retailers stopped selling popular e-cigarette products from brands such as Elf Bar and Esco Bar, manufacturers would soon find more retailers.
