Lawmakers Urge FDA to Take Action Against Importation of Illicit Chinese E-Cigarettes

Varieties of disposable flavored electronic cigarette devices manufactured by EB Design, formerly known as Elf Bar, are displayed at a store in Pinecrest, Fla., on June 26, 2023. Rebecca Blackwell/AP Photo

Bipartisan lawmakers are pressing the Food and Drug Administration (FDA) for information on its actions against the importation of illicit vape products from China amid concerns that it contributed to the rise in youth vaping in the United States.

Reps. Rob Wittman (R-Va) and Raja Krishnamoorthi (D-Ill.) wrote a letter to FDA chief Robert Califf on Feb. 1 to follow up on a letter they sent to the FDA in November 2023, which the agency did not respond to.

“While we appreciate the recent joint federal operation resulting in the seizure of more than 1.4 million units of illegal e-cigarettes in December 2023, much more needs to be done,” the lawmakers stated.

“Illegal vaping products from the PRC [People’s Republic of China] now make up more than half of all vaping products sold in the United States and contribute significantly to underage vaping rates,” they added.

They cited data from the FDA that indicate more than one in four youth in the United States reported using e-cigarettes daily and over a third reported using e-cigarettes at least 20 days a month.

Almost the majority of them preferred flavored e-cigarettes, with 56 percent of users reported using Elf Bar, a popular youth-appealing e-cigarette brand manufactured and illegally imported from China.

“These trends are deeply concerning and require the agency to address the problem now,” the lawmakers stated.

The Customs and Border Protection Agency (CBP) has found that many illegal vaping products from China are “intentionally declared or manifested incorrectly,” with packages often being mislabeled as consumer electronic goods.

“For that reason, we encourage you to keep the interagency ‘red list’ of illegal vaping products subject to seizure as up to date as possible,” they stated.

The lawmakers presented a list of questions to the FDA, including on the steps the agency has taken to prevent the flow of illegal vape products into the United States and whether it planned to initiate criminal proceedings against manufacturers.

They also questioned why the agency had not issued a rule requiring foreign manufacturing registration, as contemplated in the Tobacco Control Act.

The FDA is expected to provide its answers by March 1.

Yolonda Richardson, the president and CEO of the Tobacco-Free Kids Campaign, backed the bipartisan letter and called on the FDA to step up enforcement against illicit e-cigarette products.

“Youth e-cigarette use remains a serious public health problem in the U.S. with 2.1 million kids using e-cigarettes and about 90 percent of them using flavored products,” Ms. Richardson stated.

“We won’t end this threat to our kids’ health until the FDA clears the market of all flavored e-cigarettes,” she added.

The FDA, in collaboration with the CBP, seized 1.4 million units of unauthorized e-cigarette products in December 2023, including brands such as Elf Bar, valued at over $18 million in total. Many of the devices were falsely declared as toys or shoes.

Elf Bar disposable vaping pod devices are displayed in Washington on June 26, 2023. Andrew Harnik/AP Photo

Elf Bar products are manufactured in Shenzhen, China, but they have not received marketing approval from the FDA.

According to the International Tobacco Control Survey, Elf Bar was the top disposable e-cigarette brand reported among people aged 16 to 19 in the United States as of August 2022.

In September last year, the FDA fined 22 retailers—$19,192 for each retailer—over the illegal sale of Elf Bar e-cigarettes. This marked the first time the FDA sought the maximum fine for this type of violation, the agency stated.

There have been thousands of cases of e-cigarette exposure reported to U.S. poison centers in the past year, with most of these cases involving children under the age of five, according to the agency.

“Among the limited number of cases with brand information reported from April 2022 to March 2023, Elf Bar was cited more than all other brands combined, with nearly all Elf Bar cases occurring among children younger than five years old,” it stated.

To date, the FDA has authorized 23 tobacco-flavored e-cigarette products and devices that may be lawfully sold in the United States.

Naveen Athrappully contributed to this report.