Commentary: FDA's lack of vape enforcement is hurting small businesses

Oct 17, 2024

The Florida Retail Federation recently sounded the alarm on the difficulties small business owners have in combatting the millions of illegal disposable Chinese vapes on the market. As the President of the Florida State Hispanic Chamber of Commerce, I can attest that this is especially true in our Hispanic communities. A lot of our members feel that the Food and Drug Administration (FDA) has abandoned them and left them with the almost insurmountable challenge of fighting against a multibillion-dollar, multinational, illegal market.

As consumers seek less harmful alternatives to cigarettes, illegal disposable vape product sales have been on the rise. Here in Florida, the increase in illegal disposable vape sales has outpaced similar states like New York. That could be a good indicator if we are helping adults improve their lifestyle through smoking cessation with FDA-authorized products. But unfortunately, just last year, 85% of the market was still dominated by illicit Chinese vape products from companies like Elf Bar, Fume, and HQD.

Thanks to the leadership of Gov. Ron DeSantis, Attorney General Ashley Moody and the Florida Legislature, a new state law to create a vapor product directory will soon go into effect. The product directory is a strong first step, but the FDA needs to start doing some heavy lifting in order to get a handle on this widespread problem.

The issue here is that oftentimes our retailers are just as confused as consumers when it comes to differentiating between approved and illegal products. Many of these products are purposefully mislabeled or deceptively packaged to avoid scrutiny by customs. As Florida ports deal with massive amounts of freight every day, it’s almost impossible to prevent these products from making it into our supply chain.

In Hispanic communities, cigarette smoking is still more prevalent than in other communities. This means that confusion and deception in the marketplace creating obstacles to smoking cessation is more of a public health threat. Further, all of these challenges are exacerbated by the inherent challenges of a significant language barrier between retailers and their customers.

Retailers also find themselves on the front lines of a battle to keep these products out of the hands of teens. A CDC study released last month found that despite the passage of several federal and state laws to reduce the ability of children to access nicotine and tobacco products, disposable vape use among teenagers has gone up by 125% since 2020.

Recently, the U.S. Senate held a hearing to discuss the issue, and it was revealed that the FDA is not adequately working with state and local law enforcement to combat the illegal vapes on the market. In fact, the best explanation that FDA has been able to offer is that enforcement actions are “in the queue.” Sen. Marco Rubio recently noted that the FDA is operating under a “regulatory double standard” by not only failing to regulate illegal Chinese products, but also by simultaneously cracking down on American companies that are seeking to comply with flavor and marketing restrictions. This effectively suppresses the number of authorized vape products on the market, as illegal products continue to flood in.

The FDA under the current administration has put Florida businesses, especially Hispanic-owned businesses between a rock and a hard place, as they take on the burden, and liability, of regulating their shelves for illegal products that are hard to identify, keeping these products out of the hands of children, and protecting their businesses and customers. This administration has failed our communities, it has failed our children, and its failed Florida business owners. Looking ahead, we need change within the FDA and the next administration must do better.

Julio Fuentes is president and CEO of the Florida State Hispanic Chamber of Commerce.