Most convenience stores offer a range of colorful vapes with flavors like cotton candy or iced mango, but these products are not legally authorized. The Food and Drug Administration (FDA) has only approved 34 electronic cigarette products, with just four being menthol-flavored; all fruity-flavored e-cigarettes remain illegal.
A recent paper from Rutgers Health representatives and New York City advocates proposes using state and local lawsuits against distributors as a solution to control the distribution of these illegal products. Kevin Schroth, an associate professor at the Rutgers School of Public Health and lead author of the BMJ Tobacco Control article, stated, “The FDA is trying to regulate cigarettes like pharmaceuticals, and it lacks the resources to make it work.”
Schroth, along with co-author Eric Proshansky, a New York litigator, suggests a strategy similar to the 1998 master settlement with big tobacco. They recommend targeting domestic distributors through state and local lawsuits rather than focusing on overseas factories or corner stores. “Distributors are the bottleneck,” said Schroth. “There are thousands of stores but only a handful of companies moving the product around.”
Their proposed legal strategy includes using tools such as the Prevent All Cigarette Trafficking Act for heavy fines, alongside public-nuisance and racketeering claims that previously secured over $1 billion from Juul in 2023.
This approach is already in motion. New York City’s lawsuit against Magellan Technology and other wholesalers survived a dismissal bid in May 2024 and has led to additional cases. In February, New York state’s attorney general sued 13 major vape distributors. California, Illinois, and Vermont have filed similar complaints this year against firms distributing unauthorized disposables in markets banning flavored tobacco.
Fines in New Jersey start at $300 but inspections are inconsistent; many small shops risk quick sales while chain outlets tend to be more cautious though still caught with flavored stock occasionally.
High-school vaping peaked at 27% during what’s known as the Juul boom in 2019 before dropping to about 10% following flavor crackdowns and pandemic impacts. Since then, disposable vapes’ liquid capacity has increased fivefold while nicotine strength tripled and prices fell—raising concerns about potential resurgence if enforcement weakens.
The paper by Schroth and Proshansky avoids advocating for prison terms but focuses on financial penalties instead: “We want stiff financial penalties that force distributors to play by the rules or leave the market,” said Schroth.
If enough attorneys general pursue this strategy further litigation may prompt distributors into stocking only FDA-cleared vapes aligning shelves with legal standards—a goal emphasized by Schroth: “could finally align what’s on the shelves with what’s legal.”
