FDA Issues Warnings to E-Cigarette Manufacturers and Retailers

In recent times, an increasing number of companies, including manufacturers of some of the most popular e-cigarette brands for children, have taken to using synthetic nicotine to manufacture their products in order to evade FDA regulations. In April, an important new federal law came into effect, clarifying FDA's authority to regulate any tobacco product containing nicotine (including synthetic nicotine), and the FDA will continue to enforce this law.

Today, the FDA issued two warning letters to manufacturers demanding they cease the unauthorized sale of non-tobacco nicotine electronic cigarette products. These two companies – AZ Swagg Sauce LLC and Electric Smoke Vapor House – were targeted for a total of approximately 10,000 products listed by the FDA. Both companies failed to comply with new laws requiring submission of premarket applications for their non-tobacco nicotine products by the May 14, 2022 deadline.

In addition, the FDA announced today that it has sent 107 warning letters to retailers within the past two weeks, demanding that they cease selling non-tobacco nicotine products, including certain e-cigarettes or vape liquids, to minors. The law stipulates that tobacco products, including non-tobacco derived nicotine products, cannot be sold to customers under the age of 21 after the passing of the new law.

Dr. Brian King, Director of the FDA's Center for Tobacco Products, stated, "The FDA has been committed to actively enforcing this key new law regulating non-tobacco nicotine products, and the warning letters announced today are just the beginning of our compliance and enforcement actions." He added, "Over the next several weeks, we will continue to investigate companies that may be illegally marketing, selling, or distributing non-tobacco nicotine products and take actions as appropriate.

Starting from July 13th, 2022, any non-tobacco nicotine product that has not been authorized for sale by the FDA cannot be legally sold. Currently, the FDA is reviewing approximately one million non-tobacco nicotine product applications submitted by over 200 manufacturers before the May 14th, 2022 deadline. The FDA is preparing to issue refusal-to-file (RTA) letters for applications that do not meet the required standards as soon as possible.

The FDA is currently undertaking necessary measures to take enforcement action as soon as possible. When a company is found to be illegally marketing non-tobacco nicotine products, the agency typically sends a warning letter in order to achieve voluntary compliance, and may take enforcement action as needed, including civil fines, injunctions against sale, seizure, or ban. Additionally, any unauthorized non-tobacco nicotine products found imported into the United States can be detained or refused entry.

The FDA is working to process a significant number of submitted applications and will continue to make marketing decisions based on the best available science, taking compliance and enforcement actions as necessary. The agency remains fully committed to taking all necessary measures to protect public health and provide timely updates on its regulation of non-tobacco nicotine products.

These efforts align with the FDA's commitment to protect young people from smoking, including e-cigarettes. In addition to regulating all e-cigarettes and electronic nicotine delivery systems (ENDS), including reviewing the applications of millions of products, the agency has also made significant investments in a multimedia public education campaign aimed at nearly 10.7 million 12-17 year olds who have used or are interested in trying e-cigarettes. The FDA will emphasize information about the potential risks associated with using e-cigarettes.

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