For those new to vaping or just generally unfamiliar with federal regulations, the premarket tobacco application (or PMTA) deadline was September 9, 2020. This application is required to keep or bring new tobacco/nicotine products on the market. It is estimated that 95% to 98% of vapor manufacturers will not be able to afford this process and will not be capable of filing on time.

But 98% is not 100% (as the antis are fond of saying).

The FDA has already approved some new tobacco products that are being sold in flavors other than tobacco (specifically mint, menthol, and wintergreen). In the weeks prior to the September deadline, the FDA accepted for review several applications for bottled e-liquid in flavors ranging from tobacco to cereal to fruit. Despite the rhetoric from certain members of congress and the incessant pro-drug war drum beat of tobacco prohibitionists, FDA is still capable of approving flavored smoke-free nicotine products for market. Moreover, FDA may even allow manufactures of these products to market them as safer than cigarettes, if they apply for a modified risk order.

Denver’s flavor ban would undermine any decision by FDA to allow low-risk flavored tobacco products on the market after having met the “appropriate for the protection of public health” standard. Even without involving the FDA, flavor bans are being enacted without thorough consideration of the negative consequences. Sales data from Massachusetts and New York and a published study on San Francisco suggest that many people who were vaping prior to the flavor bans simply returned to smoking. While a flavor ban may be an inconvenience for teens trying to get their hands on nicotine, it is actively harming parents who are trying to quit smoking.