Mango, cherry and lemonade-flavored vapes – they’re delivered by mail carriers like any letter, pamphlet or package. One problem: It’s illegal in most cases to ship those products.
Still, vapes arrive regularly on the doorsteps of homes across the nation as companies flout laws regulating online sales of the products, including a ban on shipping e-cigarettes through the U.S. Postal Service. The internet is flooded with online retailers, some that advertise on social media, others that change names frequently, all of which operate as part of a broader e-commerce system that delivers millions of packages of all kinds every day.
Enforcement is complicated by a patchwork of regulations at the federal, state and local levels. While it’s not legal for the Postal Service or major companies such as UPS to ship e-cigarettes, smaller services are allowed to ferry vapes – but only if they verify the age of the customer and receive the signature of an adult, a step that studies show is often skipped.
“It’s a massive game of whack-a-mole from an enforcement standpoint,” said Kathy Crosby, CEO of Truth Initiative, a D.C. nonprofit that aims to stanch the use of tobacco and nicotine products.
The problem was outlined by University of California at San Diego researchers who found that when they ordered 99 flavored vape products online, 81 percent arrived through the Postal Service – despite laws banning that. No buyers had their IDs scanned upon delivery as required by law, according to research published Nov. 11 in the journal JAMA. More than two-third of the buyers in San Diego received packages at their homes even though the city bans online sales of flavored vapes.
“It’s incredibly easy to buy flavored vaping products online – even in areas where they are restricted,” said lead author Eric C. Leas, an assistant professor at the Herbert Wertheim School of Public Health at UCSD.
Separately, Washington Post reporters in Florida and Maryland ordered vaping products – including illegal Chinese-made disposable vapes with fruity flavors – from e-commerce retailers and received them in U.S. Postal Service or UPS packages with no signature required upon delivery.
The Postal Service did not answer questions from The Post, instead highlighting laws restricting e-cigarettes sales through the internet and noting it is “part of a multi-agency collaboration to combat the illegal distribution of vaping products.” UPS said in a statement it works to identify and cancel accounts of shippers who violate vaping restrictions.
The scrutiny of vaping e-commerce sales comes as the industry is buoyed by President-elect Donald Trump’s return to the White House.
After meeting with a vaping lobbyist during the campaign, Trump vowed to protect the industry despite his previous administration’s crackdown on e-cigarettes, The Post previously reported. The industry is urging the incoming Trump administration to fashion new standards that would accelerate approvals to market more vaping products.
The Supreme Court, which has dramatically curbed the power of federal regulators, heard arguments Dec. 2 in a case in which the industry argues that the Food and Drug Administration has unfairly denied more than 1 million vape applications. The case could upend how the agency regulates tobacco products although justices appeared favorably disposed to the FDA’s position that the denials are consistent with federal law.
Anti-tobacco groups and public health researchers contend vaping nicotine is addictive and impairs brain development in young people. The FDA has also said vape users risk exposure to toxic chemicals and dangerous metal particles, in addition to chemicals that can cause irreversible lung damage.
In contrast, the industry casts vaping as a crucial and less harmful tool to help cigarette smokers quit and calls concerns about youth vaping overblown. As proof, vape supporters point to a dramatic decline in youth vaping since 2019.
The FDA, acknowledging that e-cigarettes can help wean adults off cigarettes, has begun to authorize more vaping products from big tobacco companies. The agency has approved 34 products.
Sales of e-cigarettes – overwhelmingly flavored varieties – increased 47 percent at brick-and-mortar stores between 2019 and 2023, according to a report released in November by the CDC Foundation and Truth Initiative.
But the marketplace is flooded with illegal and disposable flavored vapes from China despite high-profile seizures by the FDA and Justice Department.
In August, the FDA proposed a rule that would require importers to submit a tracking number to U.S. customs officials for e-cigarette products.
Law enforcement officials and industry experts say Chinese companies often use private freight forwarders to ship bulk purchases of illegal vapes to the United States, frequently in mislabeled packages. After the products arrive at U.S. international mail centers, distributors use domestic mail to send products to independent vape shops while online companies also use the Postal Service to deliver vapes directly to customers.
As for domestic shipping, Congress in December 2020 passed the Preventing Online Sales of E-Cigarettes to Children Act, which prohibited companies from using the Postal Service to ship vaping products and mandated that an adult accept packages from other delivery services.
Researchers have documented accounts on TikTok that offer sales with no ID check and that promote vapes hidden in packages containing other items such as cosmetic kits.
Leading public health advocacy groups say the FDA has shirked its responsibility to regulate online sales and marketing related to them, as required by the 2009 Tobacco Control Act.
Since that measure was adopted, subsequent presidential administrations have failed to act despite the rapid growth of online commerce and social media and the ubiquity of smartphones used by teens, said Dennis Henigan, vice president and attorney for the Campaign for Tobacco-Free Kids, an advocacy group that joined six other organizations in August urging the agency to act.
“We think one of the ways to simplify enforcement as to these remote sales is by simply banning them,” Henigan said in an interview.
The FDA, in considering vape applications, has acknowledged that online age verification and other restrictions are not sufficient to keep flavored vapes away from young people. In a statement, the agency stressed it regularly conducts checks of online retailers and has issued hundreds of warning letters to e-commerce vendors. In November, the agency said it was seeking fines against 16 online retailers.
“The agency is committed to continuing to hold all retailers accountable for violations,” the statement said.
Larger vaping companies such as Juul supported the federal law, which was an extension of an earlier act that prohibited mailing of cigarettes. But the Vapor Technology Association, which represents smaller manufacturers, wholesalers, suppliers and vape shop owners, contends the shipping restrictions unfairly force companies to spend enormously on implementing compliance programs.
“Smaller players, bad actors” have ignored those rules, said the group’s executive director, Tony Abboud. He added that the shipping restrictions limit access to vapes in rural areas where few brick-and-mortar stores exist and private shipping companies do not deliver.
“It has been an impediment on business, there’s no question about that,” Abboud said.
Congressional leaders from both parties have ripped the FDA because of the ubiquity of illegal flavored vape products. This year, the FDA, Justice Department and other agencies launched a task force aimed at cracking down on vapes; in October, the FDA and customs agents said they had seized more than $76 million worth of illicit vapes bound for the United States from China.
While the FDA has a robust enforcement operation, the sheer size of the problem in the United States means state authorities need to also prioritize e-commerce violations, said Mitch Zeller, former director of the FDA’s Center for Tobacco Products.
“That can be replicated at the state and local level if the resources are there to do the monitoring, to do the surveillance and then to do the enforcement,” Zeller said.
Eight states and about 400 cities or counties have restricted sales of flavored e-cigarettes, but many do not address e-commerce or are unclear about online sales. In California, e-commerce sales of flavored vapes will be banned starting Jan. 1, closing a loophole on such transactions. Illinois recently passed a law that restricts shipment of e-cigarettes directly to customers but allows deliveries to brick-and-mortar distributors or retailers. The law also goes into effect Jan. 1.
In recent years, officials in New York City, Chicago and California have sued retailers accused of selling flavored cigarettes online.
Vermont boasts some of the strictest regulations on e-cigarette sales. In October, Attorney General Charity Clark said the state had reached a $400,000 settlement with Amazon regarding allegations the company failed to stop third-party sellers from circumventing rules preventing the sale of vaping products. (Amazon founder Jeff Bezos owns The Post).
“Since Amazon is such a huge marketplace, it feels really good to be able to enforce the law … [so] vaping products don’t get into the wrong hands,” Clark said in an interview.
But her office can spare only two attorneys to work on vaping cases, among others, Clark said.
In Florida, a Post reporter ordered three vapes, including a rechargeable Chinese-made “mango icy” disposable product. The website for the Los Angeles company Juicefly required the uploading of ID. The package arrived via the Postal Service in a nondescript box that featured the company’s logo – on an inside flap. It did not contain labeling required by Florida law.
The company, in an email, said it takes “compliance very seriously” and strives to “meet all state and federal regulations regarding online sales of our products.” About shipping, Juicefly said, “We’ll certainly look into the matter internally” and that “we do not authorize the use of our company name for publication in any media.”
(c) 2024, The Washington Post · David Ovalle, Rachel Roubein