Using lawsuits to go after purveyors targeting kids

The City of New York recently took a monumental step to protect our children with a landmark legal filing that can serve as a model for cities and states fighting teen vaping. The new suit, the first of its kind in the nation, accuses several disposable vape distributors of racketeering as well as other federal, state and local violations. This pioneering legal strategy is a bold move designed to fight back against a massive, sinister criminal operation that has largely flown under the radar.

Policymakers and parents banded together to fight the teen vaping epidemic to some success, but what many fail to realize is that the problem mutated and expanded. Over the past several years, hundreds of millions of illegal, disposable vapes in kid-friendly flavors have flooded the United States from China, sneaking across our borders and through our ports. Vapes with fruit and candy flavors like Peach Ice, Watermelon Frenzy, and Razzmatazz in colorful packaging are designed to entice our children.

While flavored vapes have been illegal in New York for years, lack of enforcement means they are still widely available. The FDA subsequently banned flavored vapes nationwide, but the agency has done a poor job communicating its own rules, which has sabotaged local enforcement. The agency tried to remedy its self-inflicted wound with recent action but it may be too little too late. Today, an international network of criminal vape traffickers is exploiting the FDA’s failure and pumping hundreds of millions of illegal vapes into every community in the country.

New York is already home to the most active criminal tobacco market in the country. As the 117th sheriff of New York City, appointed by Mayor Mike Bloomberg, I worked to design a tobacco tax enforcement program to combat the illicit market. I’ve seen the problem up close. More than half of the cigarettes sold in the state are sold illegally. More recently, illegal vapes have shared shelf space with illegal cannabis in the nascent and troubled recreational marijuana market. Given this embarrassing distinction, it’s good to see that the city is trying to take the lead to fight illegal disposable vapes.

The scariest thing about the new face of the teen vaping epidemic is that they are manufactured and distributed without any standards or oversight. Legitimate products in the supply chain are approved by the FDA to meet certain standards. Illegal, disposable vapes from China are manufactured with substandard materials and unknown ingredients. Some news reports have revealed that fentanyl in certain vapes has led to teen overdoses.

As a law enforcement professional, I’m increasingly frustrated by lawmakers who seem to think that regulating popular adult products is some sort of academic exercise. The reality is that bans, taxes and other efforts designed to change adult behavior rarely produce the desired outcome. These policies don’t reduce demand, they just drive commerce out of the legal channels into the criminal market. Every regulatory action has a reaction.

New York has the highest cigarette taxes in the nation so as a result the state has the highest rate of illegal sales as criminals smuggle cigarettes in from cheaper states. Massachusetts banned menthol cigarettes and New Hampshire’s tobacco tax revenue skyrocketed as smokers crossed the border for their purchases. The Biden administration’s overzealous, poorly-timed plan to enact a nationwide prohibition on menthol cigarettes will generate harmful consequences. Given this new disposable vaping epidemic, a nationwide menthol ban is the last thing we need right now.

Public health policy must be consistent, rooted in science, and governed by a meaningful enforcement strategy. We can’t ban flavored tobacco because it appeals to youth while we are celebrating flavored cannabis and THC candy. We can’t legalize marijuana to heal the wounds of social injustice in African-American communities while we are criminalizing menthol cigarettes that are preferred by Black smokers. We can’t enact a nationwide prohibition of an adult product without the enforcement measures in place to combat the illicit market.

If policymakers want to make true strides with public health, they must make sure there’s a thoughtful enforcement strategy as they regulate the market for tobacco and other adult products. Now that we are struggling to keep our head above a rising tide of illegal disposable vape products, we need to take aggressive action.

Cities and states should follow New York’s model and use their action as a template to fight back against the criminal disposable vape traffickers and seize their ill-gotten gains. We are losing the fight right now, but working together we can make a difference.

Domenech was the 117th sheriff of New York City and deputy director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.