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Debunking Senator Durbin’s Claims About Vaping

This past Wednesday, June 12, Senator Dick Durbin led yet another anti-vaping committee hearing in the Senate. There are more than two hours of testimony, but Durbin’s opening statement is filled with so much misinformation and misdirection that it deserves a significant response. We’ve broken his statement down into sections followed by our response to his claim.

Durbin: “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.”

The irony here is palpable considering that, if promoted appropriately, e-cigarettes have the potential to prevent many of those 480,000 deaths, yet Durbin wants to ban them.


Durbin: “We have made progress and the tobacco giants have fought back. That’s why we’re here today. In the year 2000, 28% of high school students smoked cigarettes. Thanks to the efforts of Congress and the public health community, that number has declined to only 2%.”

The idea that tobacco control efforts alone are responsible for lowering youth smoking to 2% is laughable.

Between 2014 and 2018, smoking among high school-aged youth declined from 9.2% to 8.1% But in the 4 years between 2018 (which many note as the beginning of the so-called “youth vaping epidemic”) and 2022, high school-aged youth smoking dropped 6 points to 2%. According to recent national survey data from 2023, smoking among young people is down to 1.9%.

What is the anti-tobacco crusade claiming THEY did differently in 2018 to suddenly cause so many high school students to not smoke?

They might try to argue that the Federal Tobacco 21 law caused the accelerated decline, but that wasn’t passed until December 2019 (after high school rates had already dropped 2.3 points,) and as of January 2021, twenty states still hadn’t enacted the law.


Durbin: “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.” And they followed the same playbook, the exact same playbook they successfully used to drive sales of Marlboro and Camel cigarettes in earlier years — target kids. Thanks to the addictive nature of nicotine, these companies knew — they’ve known a long time — if they could just hook a child at a young age, they had a customer for life.”

Big Tobacco didn’t “introduce” e-cigarettes. The first e-cigarettes were sold in the US in 2007. They looked like cigarettes and were exclusively marketed to adults who smoked. Over the next two to three years, small- to medium-sized e-liquid manufacturers that listened to requests from consumers started creating non-tobacco flavors. Cigarette companies like RJ Reynolds and Altria didn’t start selling their own e-cigarettes until 2013.

A few years later, e-liquid manufacturers responded to requests from those adults to create non-tobacco flavors. The tobacco industry didn’t start selling e-cigarettes until 2013, when RJ Reynolds launched the Vuse.


Durbin: It started with Juul. Backed by a $13 billion dollars from tobacco giant Altria, in a partnership which the American Heart Association mischaracterized as “a match made in tobacco heaven” — I would say “tobacco hell” — the company introduced flashy devices, kid-friendly flavors and advertisements featuring young, attractive people.

As stated above, it didn’t start with Juul and Senator Durbin was already vilifying e-cigarette flavors in 2014, before Juul hit the market.

E-cigarettes had been on the market in the US for 8 years by the time Juul launched in June of 2015, prior to Altria taking a 35% stake in the company. Altria originally had its own product, the Mark 10, that launched in 2014. That product didn’t sell well, so Altria scrapped the line, but didn’t invest in Juul until December of 2018.

Calling Juul a “flashy device” and its flavors “kid-friendly” is a stretch. The devices were a dark gray/black rectangle. The only colors were on the pod caps, which were removed when used. They were designed for adults to be discrete. The so-called “kid-friendly flavors” Juul sold were mint, mango, cucumber, and crème, not chocolate, bubble gum or fruit loops, as Senator Durbin claimed.


Durbin: “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 were using e-cigarettes.”

Saying there was a “wave of nicotine addiction” in 2018 is misleading. Those “five million teens” (20.8%) only stated that they’d tried vaping at least once in the past 30 days, not that they were “addicted.” In 2021 only 11% of young adults 18 – 24 were vaping, indicating that nearly half of those high school graduates who were vaping in 2018 weren’t still vaping after they graduated. Additionally, smoking reached a record low for both groups, so they were clearly not “addicted.”


Durbin: “The FDA and the Justice Department has (sic) the tools to prevent this epidemic. They have failed to use them. The Family Smoking Prevention Tobacco Control Act requires e-cigarette companies to get FDA authorization before — before — bringing products to market. Authorization can only be granted if the companies making the product first prove that their products are, quote, appropriate for the protection of public health, end quote. But for years, under both democratic and republican administrations, FDA ignored its responsibilities — until public health groups actually had to sue the agency to force it to do its job and protect our kids.”

The Family Smoking Prevention and Tobacco Act of 2009 only required the FDA to regulate cigarettes, cigarette tobacco, smokeless tobacco, and roll-your-own tobacco. In order to regulate all other products (made or derived from tobacco), the agency needed to issue and finalize a rule that “deems” those products to be within the FDA’s authority.

By the time the FDA realized that e-cigarettes were catching on with adults who smoked, millions of products were already on the market. The FDA didn’t deem e-cigarettes to be “tobacco products” until 2016 and it took another three years before guidelines for submitting premarket applications (PMTA) were published. Under the original deadline for PMTAs, 2018, vapor companies were given only two years to complete and submit their applications — without useful guidance from FDA about what an acceptable application would look like.  In fact, several studies that manufacturers expected FDA to require could not be done in less than three years. Unlike several members of congress, the FDA acknowledged the consequences of mass removal of e-cigarettes from the market (potentially millions of people returning to smoking — and, in 2017,  delayed the PMTA deadline to 2022.


Durbin: “. . . the US district court in Maryland found that the FDA was, in fact, violating the tobacco control act and ordered the agency to complete its review of e-cigarette applications by September the 9th, 2021. That was 33 months ago, almost three years. FDA still has not completed its review. Almost three years later, still has not completed its review.”

This ruling came in May 2019, but FDA didn’t “finalize” the PMTA guidance until June 2019. When the court made its decision,  manufacturers had no way of knowing what FDA was looking for in a robust and acceptable application. Both FDA and the courts continued underestimating the number of applications that would be submitted and once manufacturers received guidance on what to file, FDA was flooded with millions of PMTAs. It was clear that completing their review in just two years was impossible.

Durbin also ignores the fact that, according to rulings in the 5th circuit court, FDA had “arbitrarily and capriciously” denied hundreds of thousands of applications for products in flavors other than tobacco, triggering lawsuits from the industry.


Durbin: “After the court-ordered deadline passed on September 9th, 2021, FDA could have ordered every single unauthorized e-cigarette off the market — and that’s what it should have done — and as the law clearly intends.”

This is what Senator Durbin and others have always wanted – FDA to order every single e-cigarette off the market. He doesn’t care that millions of adults rely on these products to quit or keep from smoking and continues ignoring testimony from the now former Center for Tobacco Products Director, Mitch Zeller, that such a mass removal risked dire consequences for public health.

Senator Durbin is wrong about the “intent” of the Tobacco Act. Congress tasked FDA with doing what was “appropriate for the protection of public health” and FDA knows that e-cigarettes are improving health outcomes  for millions of adults who smoke. Clearing the market of low risk products while deadly cigarettes are available on every street corner clearly wouldn’t be what’s best for public health.


Durbin: “Instead, thousands of unauthorized e-cigarettes flooded the market.”

Prior to 2016, there were already millions of “unauthorized” e-cigarettes on the market by the time FDA deemed them to be  “tobacco products.”

If Durbin is referring to Chinese disposables, he can take some credit for that. By pressuring the FDA to preemptively deny authorization for hundreds of thousands of products  — before the science was reviewed — and urging the Trump administration to ban ALL pod and cartridge products, which resulted in the closure of thousands of US businesses, opened the market to those “thousands of unauthorized e-cigarettes.”


Durbin: “Flavors like blue razz ice, strawberry watermelon bubble gum and cotton candy, designed and effectively addicting millions of children of America.”

Again, teens saying they’ve tried an e-cigarette at least once in the past month isn’t evidence that they’re “addicted.” Of the 2.13 million (7.7%)youth who said in 2023 that they’d vaped in the past month, only 530,000 (1.9%) used e-cigarettes daily.

Furthermore, surveys have shown that the main reason youth try vaping is because a friend used them and curiosity. Among youth who continue vaping, their most common reasons for using e-cigarettes are they feel anxious, stressed, depressed, or to get a high or buzz from the nicotine. Not flavors!


Durbin: “Let me be clear. Despite claims from Big Tobacco, there is zero evidence that e-cigarettes and their fruity flavors are targeted at adults. None. No evidence.”

There are dozens of studies and surveys showing that adults prefer non-tobacco flavors and that these flavors help people move away from smoking.

Despite Brian King’s testimony that “there are several big tobacco entities that are manufacturing e-cigarettes with flavors that have been documented to appeal to kids,” none of the e-cigarettes sold by cigarette companies are offered in flavors that specifically appeal to youth. We can only guess he’s referring to “mint,” which is universally appealing and found in everything from alcoholic beverages to ice cream. In fact, it was the first flavor that nicotine gum manufacturers used when the unflavored gum proved unpalatable for adults who smoke.

Additionally, the tobacco industry isn’t responsible for the innovation or sale of those e-cigarette flavors. It was adults who had switched from smoking to vaping who began demanding non-tobacco flavors from e-liquid manufacturers back in 2009.

Check out this screenshot (below) of a website selling US-made e-liquids back in 2011, when high school vaping was at 1.5%. Who was buying those flavors if not adults?


Durbin: “In fact, the rate of e-cigarette use is nearly twice as high for middle school students as it is for adults.”

In fact, the exact opposite is true. In 2022, 6% of adults used e-cigarettes while only 3.3% of middle school youth used them at least once in the past month. In 2023, 4.6% (785,000) of middle school youth said they’d used e-cigarettes and the third-quarter CDC data estimated that 7% of adults (17.8 million over the age of 18) used e-cigarettes. So, nearly twenty-two times as many adults currently use e-cigarettes than middle school students.

It is true that high school students used e-cigarettes at more than double the rate of adults in 2022 (14.1% vs 6%) but using rates instead of numbers intentionally hides the fact that 2.1 million high school teens vaping is far less than over 17 million adults vaping.


Durbin: “Today I’m releasing the findings from an NIH-funded Monitoring the Future study, one of the country’s preeminent public health surveys. The researchers there estimate that 2.1 million children have picked up vaping since the Food and Drug Administration missed its September 2021 court-imposed deadline. 2.1 million new children addicted.”

The Monitoring the Future survey asked “When (if ever) did you FIRST do each of the following things?” Students who answered they’d first “vaped an e-liquid with nicotine” are the “2,110,150 estimated number of new nicotine vaping initiates in 8th through 12th grade for the 33 month period spanning September 2021 through May 2024.

The senator is just assuming that these are “2.1 million new children addicted” without any follow-up to see if they even continued vaping after they first tried it. His assumption is not based in science. Instead, politicians like Senator Durbin are promoting drug war propaganda that misleads people to believe that nicotine and other drugs are instantly “addictive” and have no redeeming value. Messages like this are the basis of abstinence-only drug policy which has been failing around the world for more than 100 years.


Durbin: “To date, only 23, remember that number, 23 e-cigarette 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.”

In fact, only 23 products have been authorized, not 23 brands. Three brands have authorized products: Vuse, NJOY and Logic, only 16 of which actually contain nicotine. Additionally, for some reason they include Logic’s heated tobacco leaf products on their e-cigarette list (but not IQOS).

If Senator Durbin had his way, that number would be zero. He complains about the “the scope of this illegal market” today, yet ignores the fact that everything will be illegally sold should he get his way. We already know  that banning marijuana and other drugs has had little effect on reducing the illicit market, or use prevalence.


Durbin: “I simply do not understand how the Food and Drug Administration and our Department of Justice have permitted thousands, thousands of products to remain on store shelves when their manufacturers have not received authorization or, in some cases, even filed for an application.”

Does he really believe that taking them off of store shelves is going to make them go away? Maybe he should ask the same question about the illegal fentanyl that’s “on the market” which, unlike nicotine e-cigarettes, is actually killing teens on a daily basis. In 2022, there was an average of 22 unintended teen overdose deaths EACH WEEK and it’s only gotten worse since then.


Durbin: “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.”

The 2020 Healthy People goal was hoping to reduce youth smoking to 16%, clearly never expecting it to actually be at 3.3% in 2020. With youth smoking now at just 1.6%, they’ve wildly surpassed their goal. So, how has vaping “erased” the hard work? And with just 7.7% of youth vaping, that’s hardly “a new generation of children addicted to nicotine.”

They also had the goal of getting adult smoking to 12% by 2020. They missed that goal (likely because they convinced adults that vaping was as bad as, if not worse than, smoking and opposed any kind of tobacco harm reduction) but the CDC early release fourth quarter estimates predict adult cigarette smoking was down to 10.5% in 2023.

While that’s good, it’s still approximately 27.4 million people smoking. Maybe it’s time Senator Durbin started thinking about them?