Tools to Fight Tobacco: An Assessment of the Legality of an FDA Prohibition on the Remote Retail Sale of Electronic Cigarettes

Abstract

In December of 2018, Surgeon General Jerome Adams took the dramatic step of declaring electronic cigarette use amongst adolescents an epidemic. He concluded his official statement with the guidance: “We must take action now to protect the health of our nation’s young people.” Unfortunately, despite this warning, the health crisis has only deepened, and nearly 30% of high school students -- alongside more than 10% of middle school students -- currently use electronic cigarettes. These high levels of tobacco product consumption are the result of an “unprecedented” rise in nicotine abuse amongst teenagers, and considering the numerous adverse health effects of vapor product inhalation, there is a clear public policy interest in finding solutions to this problem. A specific challenge facing efforts to slow the epidemic is the ease with which adolescents can acquire electronic cigarettes remotely. The internet offers various loopholes through which minors can purchase vapor products, and many online vendors employ wholly insufficient age verification protocols. A proposed remedy for this gap in enforcement is a prohibition on the remote retail sale of electronic cigarettes. Given that the Food & Drug Administration (FDA) is the primary regulatory authority for tobacco products, my main concern in this thesis was the possibility of implementing this remedy through an FDA rule. In order to assess whether this course of action would be worth pursuing, I asked whether it would be legally permissible for the FDA to enforce a ban on the remote retail sale of vapor products. My subsequent legal analysis was a multi-step process. I first established the authority that the FDA has to regulate vapor products, and evaluated any precedent for restrictions on remote retail sales. I then subjected this theoretical rule to a Chevron test: the prevailing standard for reviewing the manner in which an agency has administered a federal statute. Here, the relevant legislation was the Family Smoking Prevention and Tobacco Control Act of 2009 (Tobacco Control Act), the components of which I discussed in-depth. This process required that I engage not only with the statutes and court decisions that delineate the role of the FDA in regulating tobacco, but also with relevant medical data that the agency would consider in drafting this regulation. Ultimately, I found that the FDA would likely not be precluded from enforcing this rule. While the Tobacco Control Act certainly prohibits the FDA from banning the brick and mortar retail of tobacco products, there is nothing in the statute preventing the agency from implementing policy concerning remote retail. In turn, I found that the goal of reducing youth tobacco consumption was consistent with the expressed purposes underlying the statute, and that this rule would likely not be deemed “arbitrary and capricious.” In sum, my analysis suggested that this theoretical FDA rule appeared legally viable. I concluded with several policy considerations that I felt should accompany my analysis, and topics that may require additional research. I focused primarily on potential legality of the rule, so it will be important for future contributors to assess its potential impact.