Adding Clarity to the E-Vapor Market with Directory Enforcement

Vaping products hit American markets in 2006. Since then, the federal and state governments have grappled with regulating these products as demand soars and headlines catch national attention. Part of this regulatory struggle involves eliminating banned or illicit products from the market, and this is where reforms like ALEC’s Resolution on Directory Enforcement can apply.

In 2016, Congress gave the U.S. Food and Drug Administration (FDA) jurisdiction of all e-vapor products—officially called electronic nicotine delivery systems (ENDS). The FDA subsequently instituted a product review process, requiring all e-vapor producers and manufacturers to submit a Premarket Tobacco Product Application (PMTA) for each product. An estimated 6.5 million applications were submitted for review, and the FDA reports that it has reviewed over 90% of these PMTAs.

While the FDA does provide a list of approved products, it does not provide a list of those currently under review. This can create an opening for illicit products in the states, as ENDS manufacturers and retailers can struggle to determine which products are following federal guidelines and which are illicit.

ALEC’s Resolution on Directory Enforcement, which was approved by ALEC task forces in late 2023 at the States and Nation Policy Summit, addresses this problem. It requires “all nicotine vapor manufacturers to certify that each product they sell in [the state] is in compliance with Federal law.” The state must then create a public directory of these certified products.

The directory is not just a tool for manufacturers and retailers to use in distinguishing licit products from illicit; by requiring the directory to be publicly available, the policy also can also be used by consumers to make informed purchasing decisions. Given the number of illegal products entering the market, this use of the directory can have significant impacts.

In one instance in December 2023, authorities at Los Angeles International Airport seized 1.4 million illegal vaping pens smuggled in from China. As ALEC policy acknowledges, “many of the product formulations exported by… Chinese manufacturers are not in compliance with Chinese domestic sales restrictions.” In other words, products China has banned for its own citizens are being sent to the United States instead.

The resolution also supports granting state agencies authority to enforce the directory. In states like Louisiana, manufacturers that provide non-compliant products are “subject to a one thousand dollars daily fine for each vapor product or alternative nicotine product offered for sale in violation of” the law. States like Arizona, Indiana, Idaho, Florida, Georgia, Kansas,  Missouri, Mississippi, Nebraska, and Utah are also considering similar directory enforcement bills that all include enforcement provisions.

With millions of illicit and untested e-vapor products entering the market illegally, American manufacturers, distributors, retailers, and consumers can struggle to identify the products following federal guidelines and safety requirements. Reforms like the Resolution on Directory Enforcement can help states solve this problem.