DOJ, FDA Announce Federal Multi-Agency Task Force to Curb Distribution and Sale of Illegal E-Cigarettes

Along with the FDA and the Justice Department, the task force will bring together multiple law enforcement partners, including the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); U.S. Marshals Service (USMS); U.S. Postal Inspection Service (USPIS); and Federal Trade Commission (FTC) to coordinate and streamline efforts to bring all available criminal and civil tools to bear against the illegal distribution, and sale of e-cigarettes, vapes, and other electronic nicotine delivery system (ENDS) responsible for nicotine addiction among American youth. Additional agencies may join the task force in the coming weeks and months.

The 2023 National Youth Tobacco Survey found that about 2.1 million youths reported currently using e-cigarettes, which reflects a considerable decline from 5.3 million youth in 2019. However, 10%  of high school students and almost 5% of middle school students reported currently using e-cigarettes, and more than 1 in 4 of those e-cigarette users reported daily e-cigarette use. Manufacturers, distributors, and retailers market a wide range of products that appeal directly to school-age users, such as candy and fruit flavors, some of which come in devices designed to be easily concealed.

Youth use of tobacco products in any form — including e-cigarettes — is unsafe. According to the CDC, nicotine poses unique dangers to young people. In addition to being highly addictive, nicotine can harm the developing adolescent brain, which continues to develop until about age 25. Young people who use nicotine may also be at risk for addiction to other drugs.  

To date, the FDA has authorized the sale of 23 specific tobacco-flavored e-cigarette products and devices. These are the only e-cigarette products that currently may be lawfully marketed and sold in the United States. To date, the FDA has issued more than 1,100 warning letters to manufacturers, importers, distributors, and retailers for illegally selling and/or distributing unauthorized new tobacco products, including e-cigarettes, and has filed civil money penalty complaints against more than 55 manufacturers and 140 retailers for the manufacture and/or sale of unauthorized tobacco products. In addition, the FDA and the Justice Department have obtained injunctions against six manufacturers to stop them from manufacturing and selling unauthorized e-cigarette products.

The federal task force will focus on several topics, including investigating and prosecuting new criminal, civil, seizure, and forfeiture actions under the Prevent All Cigarette Trafficking Act of 2009 (PACT Act); the Federal Food, Drug, and Cosmetic Act (FDCA), as amended by the Family Smoking Prevention and Tobacco Control Act (TCA); and other authorities. Violations of these statutes can result in felony convictions and significant criminal fines and civil monetary penalties. They can also result in seizures of unauthorized products, which can help to make illegal e-cigarettes less accessible, including to young people. Through their participation in the task force USMS will help the FDA and the Department effectuate seizures of unauthorized e-cigarettes within the United States. 

The Justice Department is also collaborating with ATF and USPIS on potential criminal and civil enforcement actions under the PACT Act. The PACT Act requires online sellers of ENDS products to register with ATF and to verify the age of purchasers both at the point of sale and the point of delivery, as well as to comply with tax collection provisions and state and local laws. The task force will support these actions and coordinate enforcement strategies the FDA and the Justice Department are working on with multiple agency partners.

Finally, the FTC, which releases reports about cigarette, smokeless tobacco, and e-cigarette marketing, and enforces various statutory and regulatory prohibitions on false and misleading advertising, will support the activities of the task force, including by sharing its knowledge about the marketplace for vaping products.