‘It’s all about hooking kids early’: Wyden wants stores, wholesalers to pull unauthorized vaping products from shelves

(Update: adding video, comments by Senator Wyden)

WASHINGTON (KTVZ) – NewsChannel 21 spoke Friday with Sen. Ron Wyden (D-OR), chair of the Senate Finance Committee, about how he and four fellow senators recently wrote to 22 major convenience stores and their wholesalers, reminding them of their obligations and legal liability under the Family Smoking Prevention and Tobacco Control Act. 

“it's all about hooking the kids early, and then making sure you've got a lifetime of customers as a result," Wyden said, criticizing the tobacco industry.

Wyden and the other senators, sent 22 retailers a letter reminding them of their legal liability to the Family Smoking Prevention and Tobacco Act. Under the law, no tobacco product, including e-cigarettes and vapes may legally enter the market without prior approval from the food and drug administration.

"I believe most Oregon retailers are responsible," the senator told us. "We all know that there are some who will say, 'Hey, make a quick, quick buck, you know, all right, that's what I care most about." And what we want to do is make sure that the laws that are on the books are enforced against them."

 The senators claim the illegal sale of product poses a public health threat, citing children as their biggest concern. According to The Associated Press, one in 10 middle and high school students uses a tobacco product, translating to about 2.8 million US children. The same study showed 90% of students who do vape use flavored products.

"I've spoken with parents here in the Pacific Northwest and parents who come to Washington, D.C., and talk about changes they want," Wyden said. "The parents are unbelievably scared. They know the legacy of tobacco. This is another chapter."

Senator Wyden and the supporting senators believe the FDA has not done enough. As of now, the agency has issued 440 warning letters and 88 monetary fines to retailers for selling illegal products, most who’ve already been given warnings or monetary fines over the past year. Some of these stores include 7-Eleven, Chevron/Extra Mile convenience stores and Circle K, among others. 

The senator said, “the next step is, of course, we are talking to the Food and Drug Administration now about having a tougher, clearer set of rules. We're working with the citizens groups and local activists to make sure when they see cases, for example, of products being out there on those retail shelves to let us know we're following that up and passing it on." 

 NewsChannel 21 reached out to five businesses in Bend who sell vape products, but those business owners were either unavailable or reluctant to go on camera. They did say the issue with the sale of unauthorized vapes is rooted in a lack of clear communication from the FDA, resulting in confusion over what is and is not approved. Business owners also say big-chain companies have less to risk by selling unauthorized products, in comparison to family-owned businesses.

The letters were signed byWyden along with Sens. Dick Durbin (D-IL), Chair of the Senate Judiciary Committee; Bernie Sanders (I-VT), Chair of the Senate Health, Education, Labor, and Pensions Committee; Sherrod Brown (D-OH), Chair of the Senate Banking, Housing, and Urban Affairs Committee; and Richard Blumenthal (D-CT), Chair of the Senate Permanent Subcommittee on Investigations.

They highlight the apparent widespread violations of federal law that prohibits the sale and distribution of unauthorized tobacco products at convenience stores, gas stations, and other retail outlets across the nation. 

Under the law, no tobacco product—including electronic nicotine delivery systems such as e-cigarettes or vaping devices, including those containing nicotine not made or derived from tobacco—may legally enter the market for sale without having first received authorization by the Food and Drug Administration that the product is “appropriate for the protection of public health.”

The senators wrote, “Every single e-cigarette or vaping product that is not on this list was not authorized by FDA, making such products illegal and adulterated and misbranded under Sections 902 and 903 of the Federal Food, Drug, and Cosmetic Act. 

"Companies distributing or selling any such unauthorized products are subject to enforcement penalties by the FDA, which may include a civil monetary penalty or no-tobacco-sale order.  To date, FDA has issued more than 440 warning letters and 88 civil monetary penalties to retailers for the sale of illegal e-cigarettes and vaping products. Retailers and distributors engaged in the sale or distribution of such unauthorized products risk liability.”

Despite these statutory requirements, a trip to many convenience stores, gas stations, or similar retail outlets reveals scores of unauthorized e-cigarettes and vaping products being sold.  The majority of the retailers who received letters from the Senators have received warning letters and civil monetary penalties from FDA within the past year for selling e-cigarettes to underage purchasers.  

A 2022 independent report from the Reagan-Udall Foundation highlighted the potential value to enhancing communication and enforcement actions with retailers, wholesalers, and distributors who are handling illegally marketed products.  These illegal sales also pose a tremendous public health threat.  Today, millions of children use unauthorized e-cigarettes, risking nicotine addiction, respiratory illness, exacerbation of depression and anxiety, and many other harms. 

The senators continued, “As Chairs of the Senate Judiciary Committee; Finance Committee; Health, Education, Labor, and Pensions Committee; Banking, Housing, and Urban Affairs Committee; and Permanent Subcommittee on Investigations, we are working with the Department of Justice, FDA, and other agencies, to ensure adequate enforcement of federal laws to protect public health and prevent the unauthorized sale of tobacco products.  We strongly encourage your company to ensure compliance with federal laws to prevent youth use of harmful tobacco products and protect your company from liability.”

• Text of the letter to 7-Eleven is here.
• Text of the letter to Circle K Stores, Inc. is here.
• Text of the letter to Casey's General Stores, Inc. is here.
• Text of the letter to Murphy USA Inc. is here.
• Text of the letter to EG America is here.
• Text of the letter to GPM Investments, LLC is here.
• Text of the letter to bp America is here.
• Text of the letter to Chevron/ExtraMile Convenience Stores LLC is here.
• Text of the letter to Wawa Inc. is here.
• Text of the letter to QuikTrip Corporation is here.
• Text of the letter to Kwik Trip, Inc. is here.
• Text of the letter to Sheetz, Inc. is here.
• Text of the letter to Pilot Company is here.
• Text of the letter to Love's Travel Stops & Country Stores, Inc. is here.
• Text of the letter to RaceTrac, Inc. is here.
• Text of the letter to Royal Farms is here.
• Text of the letter to Amcon Distributing Company is here.
• Text of the letter to Atlantic Dominion Distributors is here.
• Text of the letter to Core-Mark is here.
• Text of the letter to McLane Company, Inc is here.
• Text of the letter to Imperial Trading Co, LLC is here.
• Text of the letter to H.T. Hackney is here.