Durbin Investigation Finds More Than 750,000 Kids Have Picked Up Vaping Since FDA's Missed Deadline To Regulate E-Cigarettes

WASHINGTON – Following an investigation by U.S. Senate Majority Whip Dick Durbin (D-IL) of multiple health surveys and retail sales data, Durbin announced findings that more than 750,000 children have started to use e-cigarettes over the last nine months, in the period of time during which the Food and Drug Administration (FDA) has defied a court order to regulate all e-cigarettes on the market. This examination was based upon data from the National Institute of Health’s Monitoring the Future survey data of 8th, 10th, and 12th graders in 2020 and 2021.  The findings were also informed by 2022 survey results from Truth Initiative’s longitudinal cohort study of youth who report initiation of e-cigarettes, as well as data from the CDC Foundation and Campaign for Tobacco-Free Kids on retail sales of e-cigarettes between 2020-2022. 

“For years, the FDA failed to regulate e-cigarettes, and allowed millions of vaping products to illegally enter the market, fueling the youth vaping epidemic,” said Durbin. “Today, millions of children use e-cigarettes as a result of FDA inaction and our findings underscore the severity of these continued delays. As each day goes by that the FDA defies a court order and allows unregulated products to remain on store shelves, more kids get hooked. It’s time for Commissioner Califf to do his job to protect our children or step aside.”

“Nicotine vaping is now one of the most common forms of substance use among U.S. adolescents, second only to alcohol.  Of the approximately 793,969 new adolescent initiates to nicotine vaping each year, many will become addicted, particularly with the high concentrations of nicotine in many of today's vaping devices,” said Dr. Robert Miech, University of Michigan, principal investigator for the NIH-funded Monitoring the Future survey.  “With the return to school buildings in 2021-22 students had greater exposure to peer pressure to vape, more access to friends who could provide vaping devices, and more opportunity to try vaping free from parental supervision.”

“The data released by Sen. Durbin underscores both that youth e-cigarette use remains a serious public health problem in the United States and that the FDA’s delay in eliminating flavored e-cigarettes is leaving our kids at risk. We applaud Sen. Durbin for his strong leadership in urging the FDA to act now to protect the health of our nation’s kids,” said Matthew L. Myers, President of the Campaign for Tobacco-Free Kids. 

“Nearly 1.5 million young people including 800,000 teens between 15-18 years old vaped nicotine for the first time in the months surrounding and following the FDA’s September 2021 deadline to review e-cigarettes. Given this data, the FDA must prioritize all major brands that ignited and continue to sustain the youth e-cigarette epidemic and should remove all unreviewed e-cigarettes from the market until those reviews are completed,” said Robin Koval, CEO and President, Truth Initiative. “Allowing the most popular e-cigarette brands among youth to be easily accessible empowers Big Tobacco to keep marketing aggressively and growing its business at the expense of young people’s physical and mental health. We thank Senator Durbin for raising this critical issue.”

The Monitoring the Future survey is administered in the Spring of a given year and found that in 2021, 793,969 students grades 8-12 newly initiated using e-cigarettes, a decline from 2020 due to the pandemic.  With students returning to in-person learning and socialization in schools for the school year beginning in September 2021, the number is likely much higher—as reinforced by retail sales level data showing large increases in 2022 compared to the prior two years.  The Truth Initiative’s longitudinal study found that 797,698 youth between the ages of 15-18 years newly initiated using e-cigarettes in Spring 2022 since the Fall of 2021.  These figures are very conservative estimates and likely an undercount because it excludes 6th and 7th graders who vape (of which they are likely hundreds of thousands) who are not fully captured by these survey sources. 

After years of delay, the U.S. District Court for the District of Maryland ordered the agency to finally begin regulating these addictive, kid-friendly vaping products—specifying that FDA had until September 9, 2021 to finalize review of e-cigarette applications. And yet, more than nine months after the court-ordered deadline, and despite calls from Durbin and other Members of Congress, FDA has still not finished its review of these products—leaving dangerous, kid-friendly e-cigarettes, like JUUL and PuffBar, still available on store shelves to hook children.

Durbin previously sent a letter with ten Senators to FDA Commissioner Califf urging FDA to immediately remove all unreviewed e-cigarettes from store shelves until the agency completes its public health review of these vaping products.  Currently, addictive, kid-friendly e-cigarettes like JUUL are on the market illegally but are being granted a free pass to be sold due to FDA’s decision to grant enforcement discretion. FDA recently submitted an update on the agency’s long-overdue review of e-cigarette applications. In it, FDA admitted it will not finish reviewing e-cigarettes until July 2023—nearly two years past the court’s deadline.

In March, Durbin led a bipartisan letter with 14 of his colleagues calling on FDA to finish its review of e-cigarettes immediately; reject applications for e-cigarettes, especially kid-friendly flavors, that do not prove they will benefit the public health; and clear the market of all unapproved e-cigarettes. The letters build upon an important bipartisan provision that Durbin and many of the letter’s co-signers led in the fiscal year 2022 Omnibus appropriations bill to clarify FDA’s authority over e-cigarettes’ synthetic nicotine.