On April 4th, Mayor Eric Adams and New York City Corporation Counsel Sylvia O. Hinds-Radix announced that the City of New York has filed a lawsuit1M. Cooper, E. Park-Lee, C. Ren, M. Cornelius, A. Jamal, and K. Cullen, “Notes from the Field: E-cigarette Use Among Middle and High School Students — United States, 2022,” MMWR. Morbidity and Mortality Weekly Report, vol. 71, no. 40, 2022, doi: https://doi.org/10.15585/mmwr.mm7140a3 against 11 e-cigarette retailers. It follows a similar lawsuit that the City of New York filed against four major distributors of flavored disposable e-cigarettes2UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK, Case 1:23-cv-05880 Document 1 Filed 07/10/23, https://www.nyc.gov/assets/home/downloads/pdf/press-releases/2023/Vape-Complaint.pdf in the middle of 2023.
The defendants, including EnvironMD Group LLD, KLCC Wholesale Inc., V. Trading, LLC, and Pioneer Distribution, Inc., are accused of violating a city code, a public nuisance statute, and New York City’s Public Health Law. The defendants are alleged to have distributed Strawberry Colada, Blueberry Energize, and Frozen Creamsicle e-liquids, among other fruit-flavored e-liquids that appeal to youth.
In January 2020, the FDA famously banned the sale of all flavored e-cigarettes except for tobacco. For years now, the only hope for e-liquid manufacturers has been Premarket Tobacco Product Applications (PMTAs) which, when approved, allow applicants to legally sell e-cigarettes and e-liquids.
As of 2024, the FDA has only issued 23 Marketing Granted Orders (MGO). None of them contain anything other than tobacco e-liquid. In theory, there should be no flavored e-liquids or vape devices on the market.
Despite the clear pipeline for approval, many vape manufacturers and retailers have chosen to bypass the process and continue to sell flavored vape products.
In a press release, Adams said, “This lawsuit will help hold 11 wholesalers accountable for their part in the illegal sale of flavored disposable e-cigarettes at a time when nicotine addiction among middle and high school youth is exploding.” 3“Mayor Adams, Corporation Counsel Hinds-Radix Announce Lawsuit Against 11 Companies Illegally Distrib,” The official website of the City of New York, 2024. https://www.nyc.gov/office-of-the-mayor/news/252-24/mayor-adams-corporation-counsel-hinds-radix-lawsuit-against-11-companies-illegally#/0 He went on to say that 11 distributors are engaging in “openly illegal” behavior that is both greedy and harmful.
According to data from the second most recent National Youth Tobacco Surveys4O. of the Commissioner, “National Survey Shows Drop in E-Cigarette Use Among High School Students,” FDA, Nov. 02, 2023. https://www.fda.gov/news-events/press-announcements/national-survey-shows-drop-e-cigarette-use-among-high-school-students#:~:text=The%20findings%2C%20which%20were%20collected, the number of high schoolers who reported current e-cigarette use has shrunk by almost 4%, but the number of middle school students who use e-cigarettes has increased by 1.3%. This data shows a clear turning point in youth use of e-cigarettes, an all-time low since the peak in 2019.
Like Adams, Hinds-Radix also furthered the false narrative that youth uptake of e-cigarettes is at an epidemic level. She said, “The City of New York will use every tool it can against businesses that are fueling the epidemic of e-cigarette use among young people and undermining public health.”
Regardless of the logic behind the lawsuit, it represents decisive action against vape manufacturers and retailers who have been allowed to ignore the rules without consequences. In the last few years, the consensus has been that the FDA is not willing or able to enforce its rules, leading to a lack of confidence in the organization.
The lawsuit has boosted public awareness around the 11 retailers listed, which will no doubt harm their bottom line. And, if it is successful, the retailers will have to pay monetary damages and civil penalties. All in all, this announcement is yet another setback for e-cigarette retailers, who are fighting to stay afloat amid changing legislation.
