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Despite new regulations, FDA still fails to protect youth from e-cigarette epidemic, American Lung Association says

Posted January 29, 2020 5:17 p.m. EST

— The US Food and Drug Administration received its fourth consecutive failing grade on regulation of tobacco products in the American Lung Association's annual State of Tobacco Control report.

A key factor in the grade was the Trump administration's decision to exempt menthol and tobacco-flavored e-cigarettes from the policy it finalized this month to clear the market of cartridge-based e-cigarette flavors. The final policy was a shift from its September announcement that it would clear the market of all e-cigarette flavors except tobacco.

"Unfortunately, the federal government has repeatedly failed to take action to protect kids from flavored tobacco products," the report said, citing studies that showed 97% of youth e-cigarette users used a flavored product in the past month and 70% said flavors were a key reason for why they vaped.

Not all marks were failures, however. In response to a new law that increased the minimum age to buy tobacco from 18 to 21, the association created a new category, and for that, the federal government received an A.

"We were surprised by how quickly the federal law was enacted," said Thomas Carr, lead author of the report and director of national policy for the American Lung Association. "We're certainly thrilled by the development."

Still, Carr noted the importance of e-cigarette regulation.

"It's staggering how fast youth vaping has been increasing ... We have a real crisis," he said.

Youth vaping continues to rise

Tobacco use by teens was a key issue in this year's report. More than 6 million middle and high school students were currently using tobacco products in 2019, according to National Youth Tobacco Survey data released by the US Centers for Disease Control and Prevention.

"The dramatic rise in youth e-cigarette/tobacco use ... is a real-world demonstration of the failure of the U.S. Food and Drug Administration (FDA) to properly oversee all tobacco products, especially e-cigarettes," said the report.

According to National Youth Tobacco Survey results cited in the report, 20.8% of high school students used e-cigarettes in 2018. In 2019, it rose to 27.5%.

The FDA has the authority to make impactful change but doesn't, Lauren Lempert, law and policy specialist for the Center for Tobacco Control Research and Education at the University of California, San Francisco, said in an email. Lempert was not involved in the new report.

The agency should "clamp down on misleading advertising claims" and "continue the work it began, but abruptly discontinued, in reducing the permitted level of nicotine in tobacco products," she said.

The FDA would not comment specifically on the Lung Association report, but said in an emailed statement it will "continue to take aggressive steps to make sure all tobacco products, including e-cigarettes are not being marketed or sold to kids," referencing the Youth Tobacco Prevention Plan. Elements of the plan include conducting inspections of more than a million retailers nationwide for tobacco product sales to minors and barring retail locations that repeatedly sell to minors for a period of time.

It also stated the Trump administration's policy on flavored e-cigarettes "is an important step" in preventing usage of e-cigarettes by kids.

Federal and state grades

Last year, the association graded the federal government and the FDA on four areas: how the FDA has implemented a 2009 law that gave it authority over manufacturing, marketing,and selling tobacco products; the effectiveness of the federal tobacco tax; quit-smoking insurance coverage efforts; and government-run mass media campaigns.

For the new report, the association kept these four areas plus added the new category of raising the minimum age for buying tobacco.

Though the federal government kept its A grade for mass media campaigns and received an A in the new minimum-age category, it received Fs for federal regulation and tobacco taxes and a D for quit-smoking coverage.

The same five grades as last year were reported for states: tobacco program funding, smoke-free air, tobacco taxes, access to cessation, and "Tobacco 21."

Carr was particularly impressed by the efforts made by California and Maine. They both had funding for tobacco control programs at close to CDC-recommended levels and have equalized taxes across all tobacco products, including e-cigarettes.

"They are exemplar states that have great grades all-around," he said.

No states received all As. Three states received all Fs, however: Alabama, Mississippi and North Carolina.

Signs of hope

While the report documents the "very negative news regarding youth use of e-cigarettes," it states adult and youth cigarette smoking rates are at an all-time low, according to the CDC's National Health Interview Survey.

It also mentioned new efforts in the pipeline that could help reduce tobacco use, including cigarette packs that will have graphic warning labels by June 2021.

While the US has made progress in controlling tobacco use, Carr believes there's still a lot to do.

"The report asks an important question: Will 2020 be the year the federal government, states and communities ... prioritize public health over the tobacco industry?" said Carr.

According to the report, 2020 "can and must be."

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