Vaping Post’s Diane Caruana, our in-house wire journalist, recently wrote a briefing about the latest round of critique related to the U.S. Food and Drug Administration’s (FDA) mixed-retail rules intended to curtail youth vaping uptake supposedly at the source.

As I have previously reported, only tobacco-, menthol-, and mint-flavored e-cigarette and vaping products will be left for sale in mixed retail locations, like convenience stores (e.g., Wawa stations, Seven-Eleven, Marathon, Kum & Go, Murphy USA, Pilot, Love’s, etc.). Characterized flavors that are sweet will be left for sale through vape shops, tobacconists, and vaping e-commerce outlets.  

A different industry perspective

In my colleague’s report, she wrote about a remarkable commentary piece by Henry O. Armour, the chief executive officer of the National Association of Convenience Stores (NACS), for CNBC online.

Focused on how the FDA regulations add further scrutiny on convenience stores as it relates to the sale of age-restricted products like vapes and e-cigarettes, Armour accused the country’s leading drug regulator of proposing “counter-productive” rules that “will make youth e-cigarette use and addiction worse, not better.”

“The flawed assumption central to FDA’s proposal is that young people primarily get e-cigarettes from convenience stores — where minors are allowed and most e-cigarettes are sold,” he argues in the column. “That may have some superficial appeal. But research shows that’s just not true.”

He pointed to the results of a notable study entitled “How Do Adolescents Get Their E-Cigarettes and Other Electronic Vaping Devices?” published in 2018 by the academic American Journal of Health Promotion

The study’s authors, led by Dr. Jessica K. Pepper of the Center for Health Policy Science and Tobacco Research at North Carolina-based think tank RTI International, found that there is a need for future research to understand better how youth acquire vapes and e-cigarettes.

“Despite high rates of ownership, many adolescents borrowed devices, suggesting that borrowing is part of users’ social experience, not just a means of acquisition,” Pepper et al. argue in the concluding arguments of the study.

Under the same study, the results of the conducted data collection show that minors who acquire e-cigarettes do so through resale from legal consumers. Over half of the minors sampled access vapes through this social channel, but the FDA issued policy focused on addressing the means of access that only 31.1 percent of the study’s sample which was direct sale from a retailer. 

The unfortunate finding was that most of the youth who acquired an e-cigarette product were through e-commerce sales, vape shops, and tobacco shops. Such a case adds further proof that industry members must take more steps to self regulate. 

FDA rules won’t work

Nonetheless, Armour offered an exciting assessment as it pertains to his perspective on the sale of e-cigarettes at convenience stores, not vape shops or tobacconists.

“The data certainly does not support the approach FDA has indicated it will take,” Armour wrote in an email to me. 

Under the rules about sales, Armour points out that restricting e-cigarette sales just to the types of retailers that sell them (vape shops, tobacco shops, etc.) will further monopolize the industry. Given that Armour has based his argument on the results of the Pepper et al. study, the shop owners for these types of establishments already have the most issues related to selling a restricted product to minors without sufficient age verification.

“The most important thing any retailer can do is to train employees how to responsibly sell age-restricted products,” Armour said, speaking about all retail establishments that sell e-cigarettes. “Training…[has] been an indispensable tool in achieving and maintaining high compliance rates.”

Armour also went on to rehash a pivotal point to the CNBC commentary piece he wrote. According to him, NACS is supporting an amendment to the Policing All Cigarette Trafficking Act (PACT Act) to cover vapes and e-cigarettes. 

Armour wrote in his email to me: “This would require face-to-face age verification at point of delivery for internet and mail-order (remote) sales. It also requires that the appropriate taxes be collected and remitted by the vendor for the ZIP Code to which the product is being shipped. The original PACT Act was enacted over ten years ago and dealt with cigarettes and smokeless tobacco products (prior to e-cigarettes) and is working well. NACS currently has no further position on the regulation of the hardware.”

Lessons for the vaping industry?

Armour’s perspective could offer lessons for retailers in the vaping industry. Please, remember that the vast majority of the vaping industry is compliant, and they never want to distribute their products to an illegal consumer class inadvertently. 

However, what can be taken from Armour’s comments is the importance of trade groups in standing up for industry members. Like NACS is to the convenience store retail industry, groups like the Vapor Technology Association (VTA), the Smoke Free Alternatives Trade Association (SFATA), the Tobacco Vapor Electronic Cigarette Association (TVECA), the Global Vaping Standards Association (GVSA), and the plethora of state-level industry advocacy groups all maintain similar positions related to the policies and issues that directly involve the industry.

Not only do some of these groups maintain manufacturing standards, but they also maintain retail sales, marketing, and age-verification standards that promote legal compliance through self-imposed regulation of activities and corporate operations.

Of course, small mom and pop vape shops might not have the resources to install novel age verification software. But, through shops that I have sampled and the owners that I interact with daily, small businesses are still doing their best. That should also be commended.

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Michael McGrady is a columnist for Vaping Post's English edition. He is a critically acclaimed journalist with awards and recognition from across the industry. He was a finalist for ECigClick's annual vape awards in 2019 and 2020, a KAC Tobacco Harm Reduction Scholarship Fellow in 2019, among other honours. He is also the host of Vaping Weekly, the Post's podcast. All articles express his own opinion and do not necessarily reflect the Editor's view.