FDA Defines Enforcement Focus for Unauthorized E-Cigarettes and Nicotine Pouches

May.09
FDA Defines Enforcement Focus for Unauthorized E-Cigarettes and Nicotine Pouches
The U.S. Food and Drug Administration issued guidance on May 8, 2026, titled “Enforcement Priorities for Certain New Tobacco Products Marketed Without Premarket Authorization.” The document describes FDA enforcement policies for certain electronic nicotine delivery system products and nicotine pouch products marketed without premarket authorization.

Key Takeaways

  • FDA issued guidance on enforcement priorities for unauthorized ENDS and nicotine pouch products on May 8, 2026.
  • The guidance applies to certain ENDS and nicotine pouch products marketed without FDA authorization.
  • FDA said it will target illegal imports, counterfeit products, misdeclared products and products without required PMTAs.
  • FDA does not intend to prioritize enforcement in certain cases where applications have been accepted and filed.
  • FDA will create a public list identifying manufacturers and products it does not intend to prioritize for enforcement under the policy.

2Firsts, May 9, 2026 

 

According to the U.S. Food and Drug Administration, the agency issued guidance titled “Enforcement Priorities for Certain New Tobacco Products Marketed Without Premarket Authorization,” describing enforcement policies for certain unauthorized electronic nicotine delivery system products and nicotine pouch products.

 

FDA said it will continue targeting illicit tobacco products

 

FDA said it is committed to combating illicit tobacco products in the United States. The agency said the illicit market undermines the regulatory framework and puts consumers at risk from products that have not undergone scientific review.

 

FDA said it continues to implement an aggressive strategy to stop illegal imports of unlawful tobacco products. The agency said its focus is on the most deceptive and dangerous products, worst actors and egregious conduct related to illicit ENDS and nicotine pouch products.

 

Enforcement focus includes counterfeit and misdeclared products

 

FDA said the products at issue include illicit ENDS and nicotine pouch products that fail to comply with basic premarket authorization requirements, such as failure to submit a premarket tobacco product application, commonly known as a PMTA. The agency also identified counterfeit products and misdeclared products.

 

FDA said it will prioritize these efforts and continue working with federal agencies including the U.S. Department of Justice and Customs and Border Protection to seize and destroy illegal products at U.S. borders, preventing them from reaching shelves or underage users in the United States.

 

Guidance explains when FDA does not intend to prioritize enforcement

 

FDA said the guidance describes when it does not intend to prioritize enforcement for ENDS and nicotine pouch products marketed without FDA authorization.

 

More specifically, FDA said it does not intend to prioritize enforcement if a product has a pending application that has been accepted and filed, or when a manufacturer has a pending and accepted supplemental PMTA. 

 

For non-tobacco flavored ENDS products, FDA said it must also determine that the application includes data necessary to evaluate whether the product is appropriate for the protection of public health.

 

Products appealing to minors are excluded from the policy

 

FDA said it does not intend to prioritize enforcement against products falling within those categories unless they have certain elements presumed to appeal to underage users. Examples include depicting a cartoon-like fictional character, disguising the product’s nature as a vaping product, or resembling a children’s toy, phone or gaming platform.

 

FDA will also consider health and safety concerns

 

FDA said it would also consider whether a tobacco product presents a significant public health or safety concern beyond that generally presented by e-cigarette, nicotine pouch or other tobacco products.

 

The agency listed examples including high nicotine content; serious adverse experiences or a larger number of unexpected adverse experiences compared with authorized e-cigarettes or nicotine pouch products; lack of child-resistant packaging under the Child Nicotine Poisoning Prevention Act of 2015; and potential fire hazards.

 

FDA will create a public list

 

To promote transparency for consumers and retailers, FDA said it will create and maintain a publicly available list identifying manufacturers and products that the agency does not intend to prioritize for enforcement under the policy.

 

FDA said manufacturers whose products are marketed under the policy and who want to be listed on the public webpage should contact the regulatory health project manager for their pending application or email CTP_enforcementpriorities@fda.hhs.gov. Manufacturers using the email address will receive an automated reply and can expect more details regarding the webpage soon.

 

Non-prioritization does not indicate likely authorization

 

FDA said the fact that an e-cigarette or nicotine pouch product falls within any enforcement policy described in the guidance does not affect whether the product is likely to receive premarket authorization.

 

Image Source: FDA

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