FDA Targets Hazardous E-Liquid Packaging, But Still Fails As A Proper Regulator

Carl V. Phillips | Contributor

The FDA has issued 13 warning letters to merchants who make or sell e-liquid in containers that resemble food items, such as juice boxes and whipped cream cans. The action was taken in conjunction with the Federal Trade Commission, which has a better legal claim to jurisdiction over packaging than does the FDA (despite their assertions). If this was all there was to it, it would be a useful and clearly legitimate regulatory action. Unfortunately, the FDA could not resist the opportunity to promulgate disinformation and try to use this to support their manufactured panic about vapor products being marketed to children.

It makes no sense to package e-liquid in containers that could be mistaken for drinks or food, as is the case with some — though not all — of the targeted products. This is just asking for accidental poisonings, and it has no upside other than someone thinking they are being edgy. On the bright side, it is basically impossible for anyone other than a toddler to accidentally ingest enough nicotine, via e-liquid, to be harmful. Even for toddlers, it is extremely difficult to ingest a fatal dose. (It is not clear whether a toddler would be able to open the packages in question and how much nicotine a single unit contains.) Calls to U.S. poison control centers about accidental exposure to e-liquid have declined substantially from their peak in 2014 despite the increasing popularity of vaping. Still, why would someone want to encourage any such accidents?

The lack of serious concern about poisonings did not stop the FDA from lying about the risk. In a tweet they claimed, “The continuing rise in popularity of e-cigarettes, which often use e-liquids, has coincided with an increase in calls to poison control centers and visits to emergency rooms related to e-liquid poisoning and other nicotine exposure.” This is simply false. There was obviously some increase when open-system vaping came into existence. The resulting rhetoric — “a 1000% increase in poison control calls since 2008!!!” — was used to manufacture a panic. This caused a spike in poison control calls, though still relatively few compared to other household items, with most being about trivial exposures (e.g., a few drops spilled). This has receded. Child-resistant packaging has also reduced the already low rate of significant accidental exposure, and this is almost zero.

Still, one might forgive the FDA if they were merely trying to overhype their action as a great and important contribution to public safety. But that is not all they are doing. They are trying to portray this is about marketing to children, their go-to rationalization for restricting adult choices.

The children that marketing is supposedly directed at are 17-years-old, or at least 13. The 7-year-olds who get excited about juice boxes or pixie sticks (one of the other lookalikes they targeted) are not exactly in the market for vapor products. This is the “bubble gum and cotton candy” fallacy made even more absurd. Anti-vaping activists constantly claim that those flavors (or, more precisely, flavor descriptors) are meant to appeal to children. But teenagers seldom want to demonstrate they share the tastes of their young siblings. It is even more absurd to suggest that teens are anxious to whip out their juice-box-style e-liquid container to show off to their friends.

Useful-idiot-level tobacco control activists seem to have little understanding of the teenage mindset (witness their inadvertent marketing of Juul products to teenagers). They consistently confuse what appeals to 8-year-olds with what might appeal to 16-year-olds. Part of this might trace to the fact that, like bad generals, they think they are fighting the previous generation’s war. It is arguably true that ancient cigarette marketing, circa 1960, included messages that encouraged young children to look forward to the day when they could smoke. But there is nothing remotely resembling that now. A young child, seeing e-liquid packaging that resembles their favorite sweets, is rather unlikely to leap to “I cannot wait until I can vape.” Even if he has such a fleeting thought, it is unlikely to have any residual effect years later when he might actually decide to vape.

FDA leadership and other leading tobacco controllers do not have the excuse of not realizing this. They understand we are no longer in the Mad Men days. Even if they did not understand the difference between the tastes of young children and teenagers at first, they have been adequately informed via feedback and research. Thus, their suggestion that this packaging is part of the “marketing to children” conspiracy is clearly a cynical political game.

The FDA described this action as “part of ongoing efforts to protect youth from the dangers of nicotine and tobacco products” and part of “addressing youth access to tobacco products.” But its legitimacy has nothing to do with product use or “access”; it is entirely about confusing packaging that might cause accident exposures. Concerns about underage use did not motivate this action. But this action is being used — dishonestly — to create concern about underage use.

FDA Commissioner Gottlieb went so far as to say, “No child should be using any tobacco product, and no tobacco products should be marketed in a way that endangers kids – especially by using imagery that misleads them into thinking the products are things they’d eat or drink.” Again, the issue with confusing packaging has nothing to do with anyone “using” the product. A half-dozen insignificant products out of the thousands of e-liquid varieties obviously does not represent the industry’s marketing practices. Moreover, thanks to the enforcement action, they will be gone in a month. So will this reduce the worries about marketing to children?

That, of course, is not how Drug Wars and other wars-of-prejudice work. Every skirmish in such wars is simultaneously spun as being evidence about how “our side” is winning and about how effective and powerful “the enemy” is. Think about the way it is typically framed along the lines of: “the raid seized drugs with a street value of $27 billion, which means our children are finally safe and also that the local police need helicopter gunships to fight this growing scourge.” The trick is to express confidence in victory (meaning there is no reason to rethink the stupid war) while also creating fear that defeat is imminent without draconian action. That should not work, but it always does.

The juice box panic makes the Juul panic look valid and science-based by comparison. At least the latter supposedly involved actual cases of teenagers using a product. But they play the same role in the FDA’s war-of-prejudice. It does not matter that all identified problems resulted in successful enforcement actions, that Juul naively folded and tried to appease, and that there was never any real evidence of a substantial problem. These stories of trivial events will be trotted out in every anti-vaping document and slideshow for years to come, used as rationalizations for any and every restriction on vaping and access to vapor products.

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Carl V. Phillips

Contributor

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