(The Center Square) – Take a walk to your local smoke shop and look at the labels. The U.S. Food and Drug Administration only allows retailers to sell 34 specific e-cigarettes, but counterfeits are inescapable.
One “Trump-aligned anti-CCP group,” the Protecting America Initiative, or PAI, launched a campaign Monday to highlight the trend. The electioneering guild, led by Trump allies, released a “five-figure ad” claiming that he “predicted this” in 2019.
The campaign calls on states to stop the flow of illegal vapes from China. Last month, the FDA and other agencies announced the seizure of more than 628,000 products that originated from China, following another seizure in October with an estimated retail value of $76 million.
“Instead of legitimate companies, good companies, making something that’s safe,” Trump said in a 2019 clip featured in the advertisement, “somebody’s going to open up a shop in China and ship it in with flavors, and you don’t know what’s in it.”
The most recent busts are only a drop in the bucket as the FDA attempts to regulate the market and push out illegal products. The agency regularly announces its activity and efforts to stop retailers from selling unauthorized products, but the flow remains unprecedented, representing 86% of the market, according to Truth Initiative.
Richard Marianos, a former assistant director of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, blamed the FDA’s enforcement strategy. He said the agency lacks the mechanisms and investigative capabilities of a typical law enforcement organization.
While the FDA touts an Office of Criminal Investigations, it makes enforcement decisions on a case-by-case basis. From January 2023 to 2025, authorities seized more than $420 million of disposable vape devices across U.S. ports, Marianos said, only a fraction of what got through.
“I can tell you, my counterparts at the time, if they had any issues surrounding criminal tobacco trafficking, they never relied on the FDA,” Marianos told The Center Square. “Can you imagine what has come into the country? That’s the number in the last two years of the retail cost.”
With most products on shelves illegal, the average user may struggle to tell which products are legal and which aren’t. Geek Bar, Elf Bar, Lost Mary, and many other e-cigarette devices are illegal but sit atop the market as U.S.-based producers attempt to compete.
Last month, the FDA had a booth at a popular tobacco expo in Las Vegas. Several companies that market illegal products were in attendance, including the parent company behind Lost Mary, Geek Bar and others.
“They just walked around, and every criminal element in the world was there demonstrating their product,” Marianos said, “and there was not one enforcement act whatsoever taking place.”
The Center Square attempted to contact the FDA to ask about enforcement activity at the January expo but did not receive an immediate response. However, according to CSP Daily News, the FDA issued warning letters to manufacturers and retailers after investigations into last year’s event, which can take months to complete.
“If such products are not removed from the market, FDA will generally issue a warning letter and allow the recipient an opportunity to respond before initiating enforcement action,” according to an FDA fact sheet, “such as civil money penalties, seizure, or injunction.”
The FDA didn’t regulate e-cigarettes until 2016. In 2020, a court decision required manufacturers to submit product applications for review before marketing. The agency received requests for more than 6.7 million products but only authorized a select number on shelves today.
“The [FDA] is unable — as a practical matter — to take enforcement action against every illegally marketed tobacco product,” the fact sheet continues. “It needs to make the best use of its resources.”
Marianos said it’s time to change the enforcement strategy. He wants the federal government to send the money allocated to the FDA for enforcement to the state and local agencies. The FDA already has a list of what’s authorized; officers could start by going to the retailers and checking the shelves.
“You give the money to the jurisdictions on an overtime basis, so you’re not taking away from people’s calls for service and their actual law enforcement duties,” he said. “Hit the shops and anybody that’s in violation, you put them out of business, and you disrupt the marketplace.”
Only three manufacturers make up the 34 e-cigarettes currently authorized by the FDA: Logic Technology Development LLC, owned by Japan Tobacco International; R.J. Reynolds Vapor Company, which is also tied to Camel and Newport cigarettes, among others; and NJOY LLC, owned by Altria, the parent company behind Marlboro, Black & Mild, Copenhagen and others.
During a Jan. 30 earnings call, Altria CEO Bill Gifford said, “The regulatory structure is broken.”
“It has become clear that two markets exist in the U.S. – one for those who operate within the regulatory framework and one for those who flagrantly violate and evade the rules,” Gifford said. “The FDA has not authorized enough smoke-free products to meet consumer demand with legal products, and regulators are not holding bad actors accountable. Illicit product manufacturers, distributors and retailers have yet to experience any material consequences for violating federal laws and regulations.”
The big tobacco giant called on the U.S. Department of Justice and states to take action against illicit manufacturers, distributors and importers. Gifford also said that if the FDA authorized more products, it could create a legal market capable of competing with bad actors.
“We estimate that the e-vapor category grew by approximately 30% in 2024 and that illicit products represent more than 60%,” Gifford said on Jan. 30. “Encouragingly, earlier this month, nine state [attorneys general] and the District of Columbia announced various actions against illicit e-vapor importers, distributors and retailers.”
This article was originally published at www.thecentersquare.com
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