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HARRISBURG — A new Pennsylvania law aimed at removing unregulated vapes from the market and protecting kids may not be very effective due to loopholes, insufficient funding for enforcement, and limited public health backing.
The statute is the commonwealth’s first major effort to tackle vaping. By this spring, manufacturers will need to have registered with the Pennsylvania Office of Attorney General and self-certified that they have been authorized by the FDA or have applied for authorization.
Act 57, which mirrors proposals passed in at least 11 other states, passed the General Assembly with broad bipartisan support and the backing of a powerful coalition of interests, including law enforcement, convenience store chains, and the state’s medical society.
“We can’t stop the youth from smoking,” State Rep. Jeanne McNeill (D., Lehigh), who sponsored the underlying bill, told Spotlight PA. “But at least if they’re going to do it … the ones they are smoking are safer for them.”
But because registry laws designed to restrict these products are so new, their impact on fighting youth access to vapes is still unclear, public health experts told Spotlight PA.
“To be honest, I’m still trying to grasp why [registry laws] became popular,” Jeffrey Drope, a research professor at Johns Hopkins Bloomberg School of Public Health, told Spotlight PA.
He and other researchers say banning all flavored products would be more effective, although other researchers disagree due to data that suggest such policies may harm adults trying to stop smoking cigarettes.
In particular, supporters of the law hope to target Chinese-made disposable vapes, which often deliver fanciful flavors and sometimes even include video games. Studies have also found these vapes can contain high levels of heavy metals.
Rates have gone up and down, but as of 2023, one in four Pennsylvania high school seniors said they had tried vaping at least once, according to a state survey. (Just over one in 10 in the same year said they had tried cigarettes, a 60% decrease from 2017.)
The law may face legal challenges from the vaping industry, Tony Abboud, executive director of the Vapor Technology Association, a trade group, told Spotlight PA.
He argued the law won’t stop the flow of vapes into Pennsylvania, and will instead shutter businesses and push consumers into an unregulated, untaxed black market.
“Nobody believes that the demand for vapes that are on the market now will go down,” Abboud said. “They will look for, and find, the products that they like, they’ve used, that they know that work for them.”
Potential registry issues
The law directs the state attorney general’s office to maintain a registry of manufacturers who can sell electronic cigarettes that contain nicotine. Products that have been authorized by the FDA are allowed to register. That encompasses just 39 e-cigarettes from a handful of brands, including those owned by big tobacco companies. They are largely refillable vapes, rather than single-use, and the list excludes all flavored products beyond menthol.
But the law includes an additional provision for products that are under review by the FDA or have received a denial that’s pending due to a court or FDA order.
There’s a “significant backlog” of applications, exacerbated by the firings by the Trump administration of the people who review them, the Examination reported last year. And because of that pileup, “tens of thousands of products can still qualify for most registries,” according to the Public Health Law Center.
“I can tell you that many … applications were really inadequate, and I don’t think that those types of products should be treated equally for purposes of these registry laws,” Mitch Zeller, a former chief federal tobacco regulator who retired in 2022, told Spotlight PA.
To get on the registry, manufacturers have to certify they are eligible under the law’s provisions. Exactly what that form will look like, and how it will be reviewed for accuracy, is unclear — the attorney general’s office declined to comment on the law’s implementation.
Attorney general spokesperson Brett Hambright said the office was “evaluating various enforcement options, but wouldn’t want to venture into disclosing techniques.”
If a vape is not registered, retailers and distributors are barred from buying or selling it. Enforcement against those companies will begin in October. Retailers who violate the law could be punished by fines of up to $1,500 per day per vape.
According to the attorney general’s office, implementing the legislation will have an initial one-time cost of $98,280, with annual ongoing personnel and operating costs equaling approximately $1.3 million.
“The Office of Attorney General staff will establish and maintain the vaping directory and provide targeted enforcement based on documentation and intelligence regarding noncompliant actors,” a state House analysis of the bill says.
The law, Hambright added in an email, ensures “only regulated products are on the market, keeping them out of the hands of children, and not marketed towards children.”
The office’s projected costs are far less than those of other states with robust tobacco enforcement spending. Neighboring New York allocates approximately $40 million for tobacco enforcement each year. Pennsylvania’s most recent budget allocated $1.7 million.
“If the state is not prepared to put the time, the money, and the effort behind enforcement,” Zeller said, “I don’t know how effective the law can be.”
The need for resources is part of why some anti-smoking advocates opposed the proposal as passed. According to the Pennsylvania Alliance for Tobacco Control, funding for a registry could be “better used to support evidence-based prevention and cessation programs.”
“Instead of investing in a system that simply monitors the problem, we need bold, enforceable action that prevents it entirely,” the group argued. That includes a flavor ban as well as efforts to ban sales near schools, they added.
Public health questions
Smoking tobacco is among the leading causes of preventable death in the United States. That hasn’t stopped people from doing it, however.
Tobacco is a $70 billion-plus industry in the U.S., with millions of users in Pennsylvania. The state’s farmers also produce millions of pounds of tobacco every year.
Vape technology, meanwhile, became popular in the 2010s as a way to let people consume nicotine, the addictive chemical in tobacco, without smoking cigarettes.
But what vaping means for public health is still unclear and subject to ongoing research, Jungmi Jun, an associate professor who studies tobacco control campaigns at the University of South Carolina, said in an email.
“The scientific consensus is fairly clear that combustible cigarettes pose substantially greater health risks than e-cigarettes, primarily due to combustion-related toxins. However, that does not mean e-cigarettes and other vape products are harmless, particularly for youth and non-smokers,” Jun said. “Much depends on who is using these products, how they are regulated, and how they are marketed and communicated to the public.”
The law, Drope of Johns Hopkins said, amounts to an attempt at controlling the vape supply chain, which he argued “is a worthwhile effort, because you want to know what’s on your marketplace.”
But Drope argued that the state would be more effective at preventing people under 21 from vaping if the legislature also hiked taxes on tobacco products and banned flavored products, which often mimic popular desserts and other sweets, and frequently get marketed to teens.
In a statement, Lynn Silver, program director of the Prevention Policy Group of the Public Health Institute, agreed with Drope that a flavor ban should have been higher on the legislature’s to-do list.
“Bans on flavored vapes should be comprehensive and span all nicotine products, cannabis where legal, and hemp, all of which are hooking kids across the nation,” she said. “Pennsylvania’s new bill falls short on protecting our youth.”
For her part, McNeill has offered a flavor ban before. But the proposal never left committee.
“I hit a wall with that. I was basically told, ‘It’s never going to be run, it’s never going to be passed,’” McNeill said of her earlier efforts. She did not clarify who told her the proposal would never pass. It would likely have faced industrywide opposition — both traditional, combustible tobacco firms and vape firms sell flavored tobacco products.
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