Franchot announces ban of flavored e-cigarette products

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ANNAPOLIS — Comptroller Peter Franchot said Monday he will exercise his authority as the state’s chief tobacco regulator and immediately ban the sale of disposable flavored e-cigarette devices in Maryland.

The action comes days after the FDA announced a ban on some flavored nicotine products but exempted disposable devices that are quickly filling the void. The ban is believed to be the first of its kind in the United States to go over and above the newly enacted federal rules, according to Franchot.

“We’re closing this enormous loophole created by the FDA that doesn’t address these products at all,” said Franchot. “These products are, sadly, the most popular among our children and we cannot allow them to remain on the market any longer.”

Under the FDA ban, all flavors of nicotine e-cigarette products sold in cartridges are banned with the exception of tobacco and menthol flavors. Opponents of the products say the flavors like Banana Ice, Mango Bomb and OMG are specifically marketed to children as young as middle schoolers.

“It’s a gateway drug to smoking and, frankly, illicit drugs,” said Franchot, arguing that the products lead to a “lifelong nicotine addiction” for users who start as early as middle school. “We have to put a stop to it, and we’re going to.”

Retailers, including convenience stores as well as distributors, were notified Monday of the new ban. Agents from the office’s enforcement division in concert with local health departments plan to inspect retailers across the state to ensure the products are pulled from shelves.

Beginning immediately, the comptroller’s Field Enforcement Division will begin spot checking retailers across the state. Under state law, there are about 100 total vape-related shops in the state. Jeff Kelly, head of the division, said all retailers who can legally sell tobacco products can also sell the devices and that as many as 8,000 stores statewide might have the products.

Kelly said the devices are not approved by the FDA and are therefore illegal.

“We sent notices out this morning to industry leaders to let them know that we see this as contraband,” said Kelly. “It’s illegal and we have every intention of conducting these inspections, check your product and may seize where it’s appropriate.”

Justin Hayes, regulatory manager for the Office of the Comptroller, said state regulations authorizes the agency to take action against licensees who “deceptively, fraudulently or illegally use their license in the state of Maryland.”

“Because the FDA has stated that these devices, in fact all (electronic smoking devices) are illegally marketed …, they’re illegal under federal law and therefore they violate that section of (Maryland’s) business regulation article,” said Hayes.

Franchot said his office has the authority to ban the products under state law and that the decision to do so “was kind of forced on us” when the FDA exempted disposable flavored e-cigarette devices from a ban that went into effect last week.

Franchot said he expects most retailers to voluntarily comply rather than risk their licenses. Wholesalers and distributors will also be expected to pull the products.

Franchot would not rule out a legal challenge from the industry.

“They certainly have enough money and enough corporate attorneys and enough self-interest because they’ve sold this device as a positive safer than cigarette smoking,” he said. “This is a good thing. Really?”

The announcement comes as the General Assembly is considering legislation to ban all flavored and menthol tobacco products in the state.

Franchot said today’s announcement is meant as complementary to any bill passed by lawmakers. The ban is also meant to be in addition to any recommendations that come from Franchot’s e-cigarette task force, which will have a final meeting next week.

One anti-smoking group said Franchot’s announcement doesn’t go far enough.

“The scope of Comptroller Franchot’s proposal is far too limited — as this issue doesn’t just start and end with some e-cigarettes,” said Jocelyn Collins, Director of the American Cancer Society Cancer Action Network.

The group supports legislation banning the sale of flavored tobacco and e-cigarette products including menthol cigarettes.