By Justin Leventhal, American Consumer Institute
Across the country, state legislatures are intensifying their war on flavored vaping products—doubling down on the same misguided tactics that have repeatedly failed to curb youth nicotine use while actively endangering adult smokers trying to quit. States like New York, Kentucky, and Pennsylvania are proudly touting new restrictions, as the federal government, through the FDA, continues to stumble on authorizing safe, effective alternatives to smoking.
The result is a regulatory framework that bans a key tool for adults to quit smoking and pushing people—both teens and adults—back toward deadly combustible cigarettes instead of protecting public health.
In New York, Governor Kathy Hochul has called for a fresh crackdown on flavored e-cigarettes. This is despite the state already having a sweeping flavor ban on the books. Now the state is ramping up enforcement to sweep out all unauthorized disposables, most of which are flavored and already banned. The intent is to protect kids, but the effect of flavor bans is to deprive adults of access to tools to quit, while teens shift back to cigarettes.
Kentucky passed a new law in 2025 requiring vape shops to sell only FDA-authorized products. That might sound reasonable until you realize that, thanks to a deeply broken regulatory process, the only authorized vapes are either tobacco-flavored or menthol. All flavored vapes—the kind thatformer smokers prefer—have been denied authorization. This law amounts to a de facto flavor ban with a bureaucratic face.
Pennsylvania followed a similar route with its new “approved product registry,” which bans the sale of any vape not authorized by the FDA. The political soundbite is to keep “candy-flavored” nicotine products away from kids. The practical reality is that more smokers are either stuck with cigarettes or forced to buy unregulated black-market products. Just as with New York and Kentucky, the result of the flavor ban will be more teens smoking and fewer adults quitting.
All of these state measures use FDA authorization as the litmus test for legality. That might make sense if the FDA’s authorization process were grounded in public health and scientific rigor, but it is not. The agency has become an impediment to harm reduction. Since they were first introduced, the FDA has authorized few vapes from only four companies. Meanwhile, it authorized nearly 900 new cigarette products in only five years.
This is not an accident; it is policy failure. The FDA’s premarket tobacco product application (PMTA) process for vapes is needlessly opaque, burdensome, and biased against flavored products. Even when manufacturers provide robust data showing that their products are dramatically less harmful than cigarettes and help adults quit, the agency still denies them on the basis that flavors attract teens.
But the data tells a very different story. Flavored vapes are not the reason youth tobacco users report for using vapes and overall youth nicotine use—including cigarettes and vapes—is declining.
The FDA’s current posture reflects an outdated mindset that ignores both the realities of consumer behavior and the growing global evidence in support of vaping as a harm reduction tool. The agency must adopt a more modern approach—one that prioritizes risk minimization over unrealistic expectations of nicotine eradication—if its goal is to promote healthier choices.
That means applying the same evidentiary standards to vaping products as to cigarettes. When a cigarette company wants to bring a new product to market, it only needs to prove it’s similar to an existing product. But for vapes, no such pathway exists. Vape manufacturers must go through the full PMTA process, a complex and expensive gauntlet designed without clear benchmarks or timelines and through which the vast majority of safer vaping products have been rejected. This double standard keeps vaping products off the market while providing ever growing choices of far deadlier combustible ones.
The solution is for the FDA to adopt a clear, science-based framework that evaluates vaping products on their ability to reduce harm relative to smoking. That includes approving flavored products shown to help adults quit, and streamlining the process for their approval.
State legislatures can play a constructive role here. Instead of outsourcing vape policy to the FDA, they should demand better. That means pressuring federal regulators for clear, evidence-based authorization pathways for consumers in their state. It means supporting harm reduction policies that empower smokers to quit. And most of all, it means resisting the urge to pass sweeping bans and restrictions that may feel good politically but cause real harm in practice.
Nicotine is not risk-free. But the delivery method matters enormously. Every year, 480,000 Americans die from smoking-related illnesses. That number could be slashed if smokers had access to a broad array of appealing, affordable, and safe vaping alternatives—especially flavored ones.
The science is clear. The economics are clear. The ethics are clear. It’s time for lawmakers and regulators to catch up.
Justin Leventhal is a senior policy analyst for the American Consumer Institute, a nonprofit education and research organization that advocates for consumers through evidence-based analysis and data. Visit www.TheAmericanConsumer.Org or follow on X @ConsumerPal.