Durbin Delivers Opening Statement During Senate Judiciary Committee Hearing on Prevalence of Youth E-Cigarette Use

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today delivered an opening statement during a Senate Judiciary Committee hearing entitled “Combatting the Youth Vaping Epidemic by Enhancing Enforcement Against Illegal E-Cigarettes.” The hearing underscored the alarming level of youth e-cigarette use and examined how federal agencies have failed to enforce laws designed to protect children from a lifetime of nicotine addiction.

In his opening statement, Durbin released new findings of an analysis completed by the National Institutes of Health (NIH)-funded Monitoring the Future study.  The study concluded that since the Food and Drug Administration (FDA) missed its September 9, 2021, court-mandated deadline to review e-cigarette Premarket Tobacco Product Applications (PMTAs), more than 2.1 million students from eighth to twelfth grade have started using e-cigarette products.  

Key Quotes:

“Cigarettes are responsible for more than 480,000 deaths per year.  These deaths touch virtually every family in this country, including my own.  This hearing is part of my continued effort in Congress to stop these needless deaths, particularly the addiction of children.”

“In the year 2000, 28 percent of high school students smoked cigarettes.  Thanks to the efforts of Congress and the public health community, that number has declined to only two percent… But anyone who thought Big Tobacco would accept this trend and dissipate like a cloud of smoke was mistaken.  Instead, they rebranded and introduced new products known as e-cigarettes.”

“They follow the exact same playbook they successfully used to drive sales of Marlboro and Camel cigarettes in the earlier years: target kids.  Thanks to the addictive nature of nicotine, these companies knew that if they could hook a child at a young age, they had a customer for life.”

“It started with JUUL. Backed by $13 billion from tobacco giant Altria—in a partnership the American Heart Association characterized as ‘a match made in tobacco heaven,’ I would say ‘a match made in tobacco hell,’—the company introduced flashy devices, kid-friendly flavors, and advertisements featuring young, attractive people.  That unleashed a wave of nicotine addiction that then-FDA Commissioner Scott Gottlieb described in 2018 as an ‘epidemic,’ with more than five million teens reporting that they used e-cigarettes.”

“The FDA and Justice Department have the tools to prevent this epidemic.  They have failed to use them.”

“The Family Smoking Prevention and Tobacco Control Act requires e-cigarette companies to get FDA authorization before bringing products to market.  Authorization can only be granted if the companies first prove that their products are ‘appropriate for the protection of the public health.’”

“But for years, under both Democratic and Republican leaders, FDA ignored its responsibility until public health groups actually had to sue the agency to force it do its job and protect our kids.  In that court case, the U.S. District Court in Maryland found that FDA was, in fact, violating the Tobacco Control Act and ordered the agency to complete its review of e-cigarette applications by September 9, 2021.  That was 33 months ago – almost three years.  FDA still has not completed its review.”

“After the court-ordered deadline passed on September 9, 2021, FDA could have ordered every single unauthorized e-cigarette off the market.  And that’s what it should have done, as the law clearly intends.  Instead, thousands of unauthorized e-cigarettes flooded the market in flavors like ‘Blue Razz Ice,’ ‘Strawberry Watermelon Bubble Gum,’ and ‘Cotton Candy’ designed for—and effectively addicting—millions of children in America.”

“Let me be clear: despite claims from Big Tobacco, there is zero evidence that e-cigarettes and their fruity flavors are targeted at adult users.  None.  No evidence.  In fact, the rate of e-cigarette use is nearly twice as high for middle school students as it is for adults.”

“Today, I am releasing findings from the NIH-funded Monitoring the Future study, one of the country’s preeminent public health surveys. Their researchers estimate that 2.1 million children have picked up vaping since FDA missed its September 2021 court-imposed deadline.”

“That’s where the Justice Department is supposed to come in.  FDA relies on Department of Justice to bring enforcement actions for violations of the law.  Sadly, the Justice Department seems to have followed FDA’s lead and has failed to effectively crack down on illegal e-cigarettes.”

“To date, only 23 e-cigarettes brands have been authorized for sale in the United States.  Yet, there are more than 6,000 e-cigarette brands on the market today.  A trip to any gas station in America, convenience store, or vape shop makes the scope of this illegal market clear.”

“I simply do not understand how FDA and DOJ have permitted thousands of products to remain on store shelves when their manufacturers have not received authorization, or, in some cases, even filed an application.  While these two agencies sit on their hands, during both the Trump and Biden Administrations, e-cigarette companies addicted a new generation of children to nicotine, erasing the hard work so many of us undertook to convince kids not to smoke tobacco cigarettes—and ultimately save their lives.”

“I would like to note for the record that we invited e-cigarette manufacturers Altria, R.J. Reynolds, Japan Tobacco International, and IMiracle Shenzhen Technology to send representatives to testify at this hearing.  None agreed to do so.”

Video of Durbin’s opening statement is available here.

Audio of Durbin’s opening statement is available here.

Footage of Durbin’s opening statement is available here for TV Stations.

Durbin has repeatedly called on FDA and DOJ to better enforce federal laws against the unlawful sale of unauthorized e-cigarette products. Durbin has slammed FDA for its continued lack of urgency as millions of children have begun using addictive e-cigarettes. For years, FDA has failed to regulate e-cigarettes—currently falling more than two and a half years past a court-ordered deadline to review applications from vaping companies, and refusing to enforce the law and take action against companies marketing illegal vaping products to children. Under the Tobacco Control Act (TCA), e-cigarette companies are required to obtain authorization from FDA prior to entering the market, which the agency has neglected to properly enforce.

In April, Durbin called FDA and DOJ officials into his Washington office to receive a briefing on the lack of enforcement against unauthorized e-cigarettes that is allowing millions of children to get hooked on nicotine. In the meeting, Durbin questioned the agencies about the unacceptable delay in reviewing pre-market tobacco product applications (PMTAs) and raised concerns about the inadequate efforts to regulate these products despite statutory and court-ordered directives.

Last year, Durbin’s office examined FDA’s public data files to identify e-cigarette manufacturers who have received both marketing denial orders and warning letters yet continue to sell unauthorized products, in order to assess FDA’s effectiveness in taking enforcement action against some of the most flagrantly defiant examples. Durbin’s office found at least 22 vaping products that appeared to be sold online by the manufacturer in violation of the law and in defiance of repeated enforcement actions by FDA. In addition to those products sold online by the manufacturer, several other such products remain available for purchase from third-party retailers, including one of the most popular e-cigarettes among children, Breeze Smoke. Durbin’s investigation also found that FDA has only issued “closeout letters” to 10 percent of the 685 tobacco warning letters it has issued since January 1, 2021. A closeout letter indicates that FDA has verified that corrective action has taken place to address the violations contained in the warning letter.

Durbin has been a vocal leader in the fight against Big Tobacco, particularly since he lost his father to lung cancer when Durbin was 14. He went after Big Tobacco when he served in the House of Representatives and led the charge to ban smoking on airplanes, which eventually led to restaurants, office buildings, trains, and much more. Durbin has also led efforts to grant FDA jurisdiction over tobacco, raise tobacco taxes to prevent youth initiation, and enhance support for tobacco cessation tools.

-30-