UK and US Vaping Policy Changes Undermine Harm Reduction
Summary
Vaping is the most effective method for adults wanting to quit smoking. But because of concern that young people may vape, vaping policies are increasingly restrictive in US and even in UK, which until recently took a permissive approach to vaping. This paper looks at how policy changes may be affecting the legal and illicit market for vaping products. Through discarded pack samplings and interviews with product sellers, it finds that nearly all products in Philadelphia, US are illegal and that illicit sellers are increasing their sales of these products. In London, UK the number of illegal products has jumped in the past year from a low base probably due to regulatory restrictions. While the original data presented are from very small samples, they do indicate a likely change, which is both bad for health and bad for legal sellers of these products.
Smoking is the problem, vaping is part of the solution
Smoking is the largest source of preventable death globally[1]. Vaping provides the nicotine that makes smoking addictive but without the myriad risks that come from burning tobacco[2].
Vaping also provides the social and ritualistic aspects of smoking, which nicotine patches and gum do not, which is probably why vaping is more effective as a smoking cessation tool. Vaping products are not riskless,[3] but they are substantially safer than smoking; the UK government suggests they are at least 95% safer, based on the available evidence.[4]
The UK and US governments have had quite distinct policy approaches to vaping. The UK has promoted vaping as an alternative to smoking, focusing on the needs of adult smokers, while discouraging use amongst teens. UK health authorities are sufficiently convinced of the relative safety of vaping that they encourage it as an alternative to patches and gum where those have not proved effective. Vaping has become the best method for adult smokers to quit their habit. Some hospitals hand out free vaping starter kits to recruit smokers into a cessation program.[5]
U.S. government policy remains equivocal about the relative benefits of vaping. The U.S. Food and Drug Administration (FDA) has approved a few vaping products,[6] but FDA communications (along with communications from other relevant federal agencies) focus more on the potential risks of vaping, especially to youth, rather than its role in smoking cessation in adults.[7]
As leading tobacco-regulation analyst Clive Bates explains: the FDA has created “almost insurmountable regulatory hurdles and barriers to entry for vapes”.[8] The strict legal sanctions the FDA levied in 2019 against U.S. vape pioneer and previous market leader Juul,[9] preventing it from selling flavored products, has not been followed up with further significant action against manufacturers or, until recently, retailers selling similar products from companies based outside the United States. The FDA has instead effectively left a legal void by denying approval to thousands of products but failing to prevent those and similar products from reaching the market[10].
The legal limbo FDA has created has encouraged a massive illegal market in US. In a recent analysis of discarded vaping packs conducted across several states by the market-research group WSPM,[11] an astonishing 97% were not legal in the United States. As I documented in my own recent research[12] the FDA has made it difficult for products to be sold legally but has not enforced the confusing laws so that hundreds of illegal products are on sale in stores that both operate legally and every other product they sell is authorized, often by FDA.
But if anything, the legal limbo in US is getting worse. FDA has changed its policy from an implied red list of illegal products to a green list of very few products allowed for import[13][14]. While this is actually an enhancement in principle, Clive Bates told me “in practice it is a disaster”[15]. Enforcing current laws when the vast majority of products sold in US are not on the green list will drive the market even further underground. Instead of unregulated products being sold in legitimate retailers, you could have unregulated and perhaps entirely bogus products, being sold by unauthorized sellers.
Such a possibility is becoming more likely since FDA has also recently begun enforcing parts of the existing law by threatening stores[16] that sell illegal vapes with fines and other punishments [17][18][19].
Most vaping products sold in US are already illegal but now are the retailers illegal too?
Meanwhile, the UK government is becoming more equivocal about the benefits of vaping, with disposable vape bans to start from June 1st 2025,[20][21] and there are reports of increasing illicit trade in vape products too[22][23].
Has the legal market moved underground in London and Philadelphia?
To assess if the markets have even more illicit products and whether the retail markets have moved underground I have looked at discarded packs in Philadelphia and London, and also interviewed three illicit traders in the Philadelphia suburbs who I first interviewed about the illicit opioid trade[24]. Additionally, I interviewed three of the convenience store owners who I had previously surveyed about vaping sales[25].
What I found
Since restrictions eased during the pandemic I have been undertaking small samplings of discarded vaping products in London and Philadelphia. The samples were collected in the same locations, but sample sizes varied (ranging from 84 packs to 142) and the samplings did not occur at the same time every year, so results from the comparisons can only be indicative of change, they do not provide compelling evidence.
Having said that, in both markets at each sampling, progressively more illegal products are found in discarded packs. The change is from 90 to 97% in Philadelphia over the past three years, but perhaps more startling is the change in London, from 2% in 2022 to nearly a third (31%) in 2025 (a jump from 7% to 31% in the past year alone).
It appears that UK policy efforts against single-use or disposable vaping products are driving (that part of) the market underground. It is not entirely clear why the market is moving underground so quickly because the ban on disposable vapes does not come into force until June 1st 2025.
Perhaps some retailers have already stopped ordering the products and wholesalers and importers (legal or otherwise) are finding other markets for their products. Although possible, Clive Bates thinks a more likely “reason is the tank size legal limit of 2 ml” being flouted in UK (and probably elsewhere in EU). Under the EU Tobacco Products Directive Article 20 (3) (a) - applicable since 2016[26] the maximum allowable tank size is 2ml. According to the ECigIntelligence Disposable Product Tracker, In Canada and US the typical tank size has increased from 2ml to over 12ml and in some instances over 14ml in just the past four years. As Bates tells me “this means these devices are in demand by consumers but can't be registered in the EU/UK as legal products.”[27]
To back up Bates’ suggestion several of the illegal products found in discarded analysis had large tanks, such as Jackaroo with a 5ml tank. At least a third of the illicit products had tank sizes well above the 2ml limit (including Voopoo and several others). Having said this some of the products with large tanks also breached other rules about nicotine content or other ingredients like caffeine.
One manufacturer I spoke with on condition of anonymity said they could “very easily put a charging port in the bottom of these devices in order to be compliant,” so they turn disposables into non-disposable products. So they too believed that “tank size” was the main reason for increase in illicit sales in UK.
Larger and more detailed studies can shine more light on whether there is indeed a substantial increase in the illicit market in UK, and if so, the reasons for it.
Philadelphia Illicit Markets
Since the opioid epidemic drove prescription medications underground, I have been interviewing illicit sellers in various Philadelphia markets. A few of them had occasionally sold vaping products, but since most of these products were available in convenience stores the illicit market was tiny, often non-existent. But from 2023 both the number of brands and the number of sales (and hence revenue) have increased, notably in the most recent sampling of 2025.
The weekly revenue from vaping sales similarly has increased from negligible to over $700 for at least one dealer.
Compared with illicit trade in narcotics $700 a week is not a significant income, but the dealer said “it might be a large market in future…we’ll see”.
Convenience Store interviews
Two of the three convenience store owners I had interviewed before, and whom were all making more than $2,000 per week in vaping sales revenue, were sent warning letters by FDA in fall or early winter 2024. Each letter demanded they stop selling these products.
The owners were not sure how serious FDA was in its threats but one of the owners had removed all vaping products from his store that might be problematic and was left with just three brands on sale. He said he was obviously losing money but didn’t want a “raid and legal headaches”. The other owner had not changed products on sale yet but was thinking about it and both had taken “legal advice”. All three still earn “far more from cigarette sales” so are not worried about the loss of the vaping market.
Similar Product Prices
Many of the brands on sale in convenience stores were different than those sold by illicit sellers, however, there was overlap with some of the most popular brands sold by everyone ( e.g. Lost Mary and Elf Bar, and more recently Smok, Voopoo and Breeze Smoke). Perhaps surprisingly the prices were very similar with negligible price difference between the illicit sellers and the average of the convenience store prices.
How has the market changed
In Philadelphia, based on this small sample, some convenience stores are indeed reducing vape products on sale due to concerns about FDA action. And at least one illicit dealer is today selling seven brands (many more than in 2024) and making hundreds of dollars a week from these illicit vape sales. And given indications from interviews there is a high probability that more illicit traders will sell these products in future. The number and type of illicit trader will probably expand, from the highly dubious street corner peddlers of narcotics and now vapes, to the car boot sales outside middleclass malls.
The fact that pricing of products on sale in both illicit markets and convenience stores is very similar suggests that availability of products is merely a displacement from legal to illegal markets. Illicit dealers indicated no problem in accessing supply and given alternative legal sources there was no incentive to put a significant premium on prices. That of course may change in future if legal supply is significantly diminished. Price increases in the illicit market would be an indicator of constrained legal market supply.
President Trump will soon have a new head of FDA, Dr Marty Makary. His first task must be to speed up approval of vaping products, because the current direction of the market, where FDA, border patrol and police clamp down on illegal products, while FDA slow-walks new product approvals is only going to drive the market underground.
The UK illicit market is small at present, with the majority of products found in discarded packs still being legal. However, the number of illicit products in the most recent survey were far higher than just a year ago, many being larger tank models. Larger and more detailed surveys need to be undertaken soon as the disposables ban begins in June.
If UK authorities move more in the direction of US policy, with product bans and equivocal stances about vape safety, we are likely to see an increase in illicit products on sale and probably the market too being driven underground.
Furthermore, illicit vapes, are often not regulated by any legitimate authority and hence quality control in production is more likely to be weak, which means potential health risks are increased for those using such products.
These outcomes are terrible for public health. Smoking is the real threat and any restriction on the vape market will probably lead to an increase in smoking. However, it is possible that tax revenue will increase for authorities as some people revert back to smoking (which carries a higher tax rate on higher-priced products). For existing vaping products, and hopefully new products, sensible tax policy to encourage the switching from smoking to vaping will be vital[28]. But some US and UK politicians will see the status quo or even more smoking as a financial win. UK and US smokers will only lose with deteriorating health.
[1] See, Burden of Cigarette Use in the U.S., Ctr. for Disease Control and Prevention, https://www.cdc.gov/tobacco/campaign/tips/resources/data/cigarette-smoking-in-united-states.html#:~:text=In%202022%2C%20an%20estimated%2011.6,every%20day%20or%20some%20days (last visited Mar. 10, 2025)
[2] See Nicotine Dosage, Drugs.com, https://www.drugs.com/dosage/nicotine.html (last visited Mar. 11, 2025).
[3] Akihiro Kishimoto et al., Forecasting Vaping Health Risks Through Neural Network Model Prediction of Flavour Pyrolysis Reactions, 14 Sci. Rep. 9591, 10 (2024), https://www.nature.com/articles/s41598-024-59619-x.
[4] See Ann McNeill et al., Vaping in England: Evid. Update Feb. 2021, Public Health England (2021), https://www.gov.uk/government/publications/vaping-in-england-evidence-update-february-2021.
[5] See, Starter Vape Packs to be Handed Out in Hospitals, U. E. Anglia (Apr. 29, 2021), https://www.uea.ac.uk/about/news/article/starter-vape-packs-to-be-handed-out-in-hospitals.
[6] See, FDA Permits Marketing of E-Cigarette Products, Marking the First Authorization of Its Kind by the Agency, U.S. Food & Drug Admin. (Oct. 12, 2021), https://www.fda.gov/news-events/press-announcements/fda-permits-marketing-e-cigarette-products-marking-first-authorization-its-kind-agency.
[7] Clive Bates, Fixing U.S. Vape Regulation- Twelve Proposals, The Counterfactual (Jun. 12, 2024), https://clivebates.com/fixing-u-s-vape-regulation-twelve-proposals.
[8] Id. at 11.
[9] James Ducharme, How Juul Got Vaporized, Time (May 17, 2021), https://time.com/6048234/juul-downfall.
[10] See Matthew Perrone, Thousands of Unauthorized Vapes are Pouring into the US Despite the FDA Crackdown on Fruity Flavors, AP News, June 26, 2023, https://apnews.com/article/fda-vapes-vaping-elf-bar-juul-80b2680a874d89b8d651c5e909e39e8f.
[11] See Cami Mondeaux, Majority of Disposed Vapes in D.C. Exported from China Despite Bad: Study, Wash. Exam’r (May 29, 2024), https://www.washingtonexaminer.com/policy/healthcare/3020885/majority-disposed-vapes-dc-exported-china-study.
[12] See Roger Bate, Schrödinger’s Vapes: How Confusing Vape Regulations Harm Consumer Choice and Safety, Int’l Ctr L. & Econ., Aug. 30, 2024, https://laweconcenter.org/resources/schrodingers-vapes-how-confusing-vape-regulations-harm-consumer-choice-and-safety/.
[13] See Advisory and Enforcement Actions Against Industry for Unauthorized Tobacco Products, U.S. Food & Drug Admin., https://www.fda.gov/tobacco-products/compliance-enforcement-training/advisory-and-enforcement-actions-against-industry-unauthorized-tobacco-products#Enforcement%20Priorities (last visited: Mar. 11, 2025).
[14] See FDA updates Import Alerts to Reinforce that All Unauthorized E-Cigarettes May be Detained Without Physical Examination, U.S. Food & Drug Admin., Jan. 3, 2025, https://www.fda.gov/tobacco-products/ctp-newsroom/fda-updates-import-alerts-reinforce-all-unauthorized-e-cigarettes-may-be-detained-without-physical.
[15] Personal Communication 2/18/25
[16] See Working with States, FDA Warns More than 100 Retailers for Illegal Sale of Youth Appealing E-Cigarettes, Including Geek Bar, U.S. Food & Drug Admin., Dec. 5, 2024, https://www.fda.gov/tobacco-products/ctp-newsroom/working-states-fda-warns-more-100-retailers-illegal-sale-youth-appealing-e-cigarettes-including-geek.
[17] See Justice Department and FDA Announce Federal Multi-Agency Task Force to Curb Distribution and Sale of Illegal E-Cigarettes, U.S. Dep’t Just., June 10, 2024, https://www.justice.gov/opa/pr/justice-department-and-fda-announce-federal-multi-agency-task-force-curb-distribution-and.
[18] https://vaporvoice.net/2024/11/26/fda-seeks-fines-for-18-sellers-of-illegal-vapes/
[19] See Elisabeth Mahase, Vaping: US FDA has Issued More than 1200 Warning Letters Over Unauthorised Tobacco Products, the BMJ, June 7, 2024, https://www.bmj.com/content/385/bmj.q1267.
[20] Dep’t Env’t, Food & Rural Affs., Dep’t Health & Soc. Care, Mary Creagh CBE MP, and Andrew Gwynne MP, Government Crackdown on Single-Use Vapes, Gov.UK (Oct. 24, 2024), https://www.gov.uk/government/news/government-crackdown-on-single-use-vapes.
[21] Dep’t Env’t, Food & Rural Affs., Single-Use Vapes Ban, Gov.UK (Jan. 20, 2025), https://www.gov.uk/guidance/single-use-vapes-ban#:~:text=If%20you%20still%20have%20single,need%20to%20pay%20a%20fee.
[22] See Ben King, Over Four Million Illegal Vapes Seized at Border, Brit. Broad. Corp., Jan. 26, 2024, https://www.bbc.com/news/business-68099182
[23] See Neil Shaw, Map Shows Where Illegal Vapes are Being Seized after Huge Surge, Manchester Evening News, Feb. 19, 2025, https://www.manchestereveningnews.co.uk/news/health/illegal-vape-seizure-map-tendendo-31037674.
[24] See Roger Bate, A Field Study of the Opioid Market: Authenticity and Price from Pharmacy to Street, Am. Enter. Inst., https://www.aei.org/wp-content/uploads/2018/10/Bate-final-wp.pdf (last visited: Mar. 12, 2025).
[25] Bate, supra note 12
[26] See Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning the Manufacture, Presentation and Sale of Tobacco and Related Products and Repealing Directive 2001/37/EC, 2014 Off. J. Eur. Union, (L 127) 1, https://health.ec.europa.eu/document/download/c4aa6f75-7e52-463b-badb-cbb6181b87c3_en?filename=dir_201440_en.pdf
[27] Personal communication 2/26/25
[28] Adam Hoffer, How Should Alternative Tobacco Products be Taxed?, Tax Found., Aug. 24, 2023, https://taxfoundation.org/research/all/federal/taxing-alternative-tobacco-products/.