WASHINGTON — Two months ago, President Donald Trump promised a severe crackdown on vaping. Now the question is whether he'll follow through in the specific ban he'll unveil this week.
Anticipation is at a fever pitch as the Food and Drug Administration finalizes the details of a ban expected to restrict sales of flavored e-cigarettes and raise the legal purchasing age for a range of tobacco products from 18 to 21 — a response to the surge in youth vaping and a recent spate of vaping-related lung illnesses.
"We're going to be coming out with an important position on vaping," Trump told reporters on the White House lawn on Friday. "We have to take care of our kids, most importantly, so we're going to have an age limit of 21 or so."
Hundreds of protesters organized by United Vapers Alliance gathered in front of the White House over the weekend, smoking e-cigarettes and holding signs saying "We Vape We Vote." Americans for Tax Reform, the American Conservative Union and other conservative groups are pressuring the administration to walk it back. Even as e-cigarette maker Juul and other industry groups say publicly they will support the ban, they've spent record sums of money this year lobbying policymakers.
Amid all this furor, health-care advocates worry the administration might soften the approach Trump outlined back in September. For example, the ban could exempt some flavored e-cigarettes or give broader leeway around who can sell vaping products.
"There has been intense political pressure and lobbying by the e-cigarette industry to gut the administration's plan," the Campaign for Tobacco-Free Kids said in a statement released over the weekend. "If the administration caves to these efforts, the e-cigarette industry and the political swamp will win and America's kids will lose."
Paul Blair, director of strategic initiatives for Americans for Tax Reform, says the ban could also include an endorsement of legislation being pushed by Senate Majority Leader Mitch McConnell, R-Ky., to raise the legal age for buying tobacco to 21, a step the FDA can't take on its own. Blair was one of thousands of vaping advocates who participated in the protest on the Ellipse on Saturday.
This much is clear: There are sharp divides inside the administration over how far a ban should go and whether e-cigarettes have any redeeming qualities (such as helping people stop smoking traditional cigarettes). Joe Grogan, the conservative and influential head of the president's Domestic Policy Council, said last week he still thinks e-cigarettes can still be a good alternative. "We really want to make sure we are data-driven on this and striking the right balance between adult choice and protecting kids," Grogan told reporters.
Here are questions to ask when the ban lands:
Does it include mint and menthol-flavored e-cigarettes?
The ban will certainly include fruit and candy-flavored e-cigarettes, as those are more commonly used by teenagers. Studies have shown youth perceive sweet flavors as less harmful than tobacco-flavored products. But mint and menthol-flavored e-cigarettes are more of a toss-up: They're also more attractive to kids but are often used by adults to help them stop smoking menthol cigarettes.
Trump said in September he planned to remove all nontobacco-flavored vapes from the market, including menthol. A year ago, then-FDA Commissioner Scott Gottlieb also vowed to issue a formal proposal banning menthol cigarettes, saying they "disproportionately and adversely affect underserved communities." But now the administration is considering backing away from mint and menthol products, Bloomberg News recently reported.
This might be a hint about what the ban contains: Juul announced last week it is halting sales of its popular mint-flavored e-cigarettes. "Mint accounts for about 70 percent of Juul's sales in the United States, compared with 20 percent for tobacco-flavored vapes and 10 percent for menthol," The Washington Post's Laurie McGinley reported. "Juul stopped selling its popular mango, fruit, creme and cucumber liquid-nicotine pods in brick-and-mortar stores last year and online in September."
"In a statement Thursday, Juul said it made the decision to halt mint sales 'in light of' new data released this week showing mint's popularity among underage vapers," McGinley notes. "The studies indicated that teens prefer Juul products and that mint is their favorite flavor."
Will the ban exclude adult-only vaping shops?
Opponents of e-cigarette restrictions have argued they could destroy small businesses by forcing thousands of mom-and-pop vape shops to shutter. The result, opponents say, is that people who use e-cigarettes to help them get off traditional cigarettes might either resume their old ways or seek out products on the black market.
Blair said he's hopeful the ban will still allow the sale of flavored e-cigarettes in adult-only vape shops. If the White House gives the vape shops some kind of exemption, it would be only a temporary reprieve, Blair said. That's because makers of flavored e-liquids — nicotine-based vaping liquids — have to apply for FDA marketing authorization by May to stay on the market. That requirement would be difficult to meet for many e-liquid suppliers, he said.
Trump adviser Kellyanne Conway suggested last week that adult-only vape shops may be exempted, saying the Department of Health and Human Services has jurisdiction over e-cigarettes but not over vape shops. She stressed the new regulations should keep youths away from e-cigarettes without encroaching upon the rights of adults to access the products.
"This is a burgeoning health crisis; the difference is between kids and adults," Conway said. "So, if we're talking about e-cigarettes, the president, yes, he's been discussing this with his team and he will . . . make an announcement soon."
The president also hinted at an exemption for vape shops, expressing concern about a regulation that would result in job losses.
"We have a lot of people to look at, including jobs, frankly, because it's become a pretty big industry," he said.
This article was written by Paige Winfield Cunningham, a reporter for The Washington Post.