While American companies wait in line for years for the Food and Drug Administration’s (FDA) blessing to sell regulated vape products, China is casually cutting the line, exporting unregulated flavored disposable vapes to the United States. What makes China’s flagrant disregard for the rules even worse is that they are marketing their illicit products to our children.
During an April House Committee on Oversight and Accountability hearing on FDA oversight, Chairman James Comer questioned whether the FDA’s failures were complicit in allowing a barrage of illicit Chinese vapes into the U.S. “containing God knows what.” FDA Commissioner Robert Califf countered that the FDA has already sent “over six-hundred warning letters to manufacturers.” What the commissioner fails to grasp is you don’t bring warning letters to an illicit vape fight with China.
While the FDA contemplates writing weak warning letters to vape manufacturers in China, more than 2.1 million American children have smoked e-cigarettes, the majority being unregulated foreign products. The rate of illegal vape consumption by adolescents has increased by over 1,000% in 2020. It is not a coincidence that in that same year, the FDA banned the sale of most flavored vapes, thus igniting the illicit market. True to their pattern of ruthless hypocrisy, the government of China later banned the sale of flavored vapes in their country while profiting from the surge of unregulated exports to the United States, which now accounts for the majority of illegal vapes sold in America.
Years ago, we used to worry about our children eating too much candy. Now, China has taken the flavors of candy and infused them into their vape products to entice minors.
Why can’t the FDA stop this?
The agency’s warning letters are as much a deterrent as a tuna fish serving a hungry shark with a cease and desist order. In a letter to FDA Commissioner Califf, Republican Florida Sen. Marco Rubio asserted that noncompliant vape manufacturers in China send shipping containers loaded with unregulated flavored vapes into the U.S. daily, and stated, “FDA’s attempts at enforcement have proven totally inadequate.” He added that these companies easily circumvent FDA watchlists and Customs Border Patrol (CBP) inspections by lying on shipping manifests or changing their business names.
To their credit, FDA’s law enforcement agents coordinated with U.S. Customs and Border Protection in seizing 1.4 million illegal vapes at Los Angeles International Airport in December 2023. Unfortunately, that was just a drop in the illicit giant vape bucket. Industry experts estimate that 150 million vapes are sold in the U.S. annually. Before the FDA pops the cork on their celebratory champagne bottle, they should walk through any city and stop at a convenience store, gas station, smoke shop or bodega. What they’ll find is a toxic array of illegal vapes from China lining these store’s shelves.
The FDA’s “one-shot offense” will not deter China from profiting off of the millions of illegal vapes they ship to our country. A sustained enforcement approach is needed.
If the FDA needs more law enforcement assets, and it does, it should be requesting more congressional funding. They have an estimated 200 highly skilled cadre of Special Agents, but obviously the FDA needs more special agents to combat this alarming problem, not toothless warning letters.
Considering China’s unrelenting illegal vape exports, the FDA should work with the Treasury and State Departments to impose formidable sanctions against their government and culpable manufacturers. In 2023, the Department of Justice (DOJ) brought charges against companies in China that were complicit in shipping fentanyl-related chemicals to Mexico and the U.S., and more recently, findings released by the House Select Committee corroborated China’s culpability as the main producer of fatal fentanyl ingredients.
The FDA should work with the DOJ to initiate similar charges against the offending vape companies in China.
The FDA should also work closely with state officials to ensure lists of legal vape distributors and products are disseminated to store owners and encourage state officials to enact laws that provide penalties to those who peddle unregulated flavored e-cigarettes to our children. Additionally, FDA law enforcement assets should coordinate with state and local law enforcement to initiate periodic sweeps and target stores openly selling illegal vape products, which are about as hard to find as a beer stand at a baseball game.
To help CBP identify shipping containers for inspection and seizure, the FDA should cultivate intelligence sharing with its federal partners, including the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, Postal Inspection and others. One seizure per year will not suffice when millions of illegal vape products are being sold annually. The FDA should also work with these same partners to identify websites that are selling unregulated flavored e-cigarettes from China.
Considering our children’s wellness is at stake, the FDA needs to initiate a sustained, comprehensive blitz, i.e., Operation Vaporize, and get China’s garbage out of our country. We don’t want our children playing Chinese roulette with unregulated flavored disposable vapes.
Jon Adler is the former Director of the Department of Justice, Bureau of Justice Assistance. He is also the former Chief Firearms and Tactical Training Officer of the U.S. Attorney’s Office in the Southern District of New York, and a 26 year federal law enforcement veteran.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.