Federal regulators this year stepped up efforts to protect young children from a deadly vaping threat: accidents involving liquid nicotine in bottles with enticing candy colors and flavors.
In February, the Consumer Product Safety Commission sent out notices about a safety requirement that it had previously ignored. In addition to child-resistant caps, vape juice containers must dramatically limit how much can spill out of an open bottle. A vial can contain enough poison to kill four toddlers.
But nine months later – and nearly four years after a federal law called for flow restrictors – dangerous and illegal bottles remain on shelves across the country, a USA TODAY investigation has found.
In Detroit, a reporter purchased a pink bottle of berry-flavored vape juice violating the safety standards. In Liverpool in upstate New York, “Bad Drip” liquid nicotine was sold in a bottle without a flow restrictor. A bottle in Appleton, Wisconsin, was sealed with nothing more than wax.
Reporters had little trouble finding and buying vaping products in illegal bottles from Florida to Pennsylvania, California to South Carolina.
The extent of the problem across some 11,500 vape stores nationally remains unknown. Not even the federal agency enforcing the regulation can say how widely flow restrictors are being used.
Since May, the CPSC has conducted at least 50 inspections of vape stores and sent more than 30 “notice of violation” letters advising manufacturers to stop selling products without safety protections.
But the agency has not publicly recalled any liquid nicotine bottles and lagging enforcement may be emboldening illegal product dumping.
Sandbar Vapor Lounge owner David Bivens, who had illegal bottles on his shelves in Vero Beach, Florida, said that in five years in the business he had never heard about the flow restrictor rule. He would have removed products without the safety feature, he added, if authorities had told him to.
“I always follow the rules,” he said.
In Appleton, Wisconsin, Fox Valley Vapor store owner Brad Busse said he has seen manufacturers discounting bottles without flow restrictors. He thinks consumers may find the products “flooding the market.”
CPSC commissioner Peter Feldman also observed bargain pricing on bottles of liquid nicotine appearing to lack flow restrictors at a vape store in northern Virginia, within 10 miles of the agency’s headquarters.
“I’m concerned that the agency’s own actions have contributed to a spike in sales of noncompliant containers,” he wrote in a recent email to CPSC staff, blaming the “slow-walking enforcement.”
The agency is now concerned, too. It warned retailers on Friday that steeply discounting unsafe bottles shows “they know that they are engaged in selling illegal products.”
The failure of this simple fix to a vaping hazard is a cautionary tale amid today’s calls for stricter policing of e-cigarettes prompted by a rising epidemic of youth vaping and a new health threat: a deadly outbreak of vape-related respiratory illness that has sickened more than 2,000 people.
As regulation lagged, a new generation of tobacco products grew into a multibillion dollar industry whose consequences are still poorly understood. Government public health reviews of e-cigarettes are not required until next year.
President Donald Trump has sent mixed signals in an increasingly political fight over stronger regulations of vaping products. A public health push to ban certain flavored products drew protests from vapors who vote.
Protecting children from poisoning, by contrast, was not nearly as complicated. Yet it took almost two years – and the death of a child – for Congress to pass a law requiring the bottles of liquid nicotine to include child-resistant caps, meeting safety standards applied to other household hazards.
It took an additional three years for regulators to clarify that the law also required the flow restrictors.
It has taken regulators nearly one more year to highlight the flow restrictor rule for retailers in Friday’s open letter explaining the requirement. It was released after USA TODAY asked the agency about the illegal products that reporters purchased with ease all over the country.
Meanwhile, emergency rooms saw an estimated 4,200 injuries in young children for liquid nicotine ingestion from 2015 to 2018, according to safety commission figures. From January to September of this year, the American Association of Poison Control Centers’ call logs include nearly 3,000 cases involving exposure to vaping products. More than half were for children 5 and younger.
“I really hope that we learn from our past mistakes, so that we can better protect kids from dying,” said Kyran Quinlan, an American Academy of Pediatrics leader on injury violence and poison prevention. “The industry exploded and was moving very fast. The regulation of it was in slow motion.”
Regulation in slow motion even after death
In 2014, a report from the Centers for Disease Control and Prevention sounded alarms about rising calls to poison centers over young children exposed to liquid nicotine and e-cigarettes.
Quinlan and other pediatricians warned the government that it was only a matter of time before a child died.
Later that year, just before Christmas, their fears were realized when 1-year-old Eli Hotaling got into an open liquid nicotine bottle in an upstate New York home. He began to convulse and vomit blood, with his eyes rolling to the back of his head, according to a police report. When the ambulance pulled away, his skin was purple.
Broad regulation of e-cigarettes as a tobacco product fell to the Food and Drug Administration, which had not yet finalized plans for doing so. The CPSC enforced safety packaging standards for hazardous household chemicals and drugs under rules set out by a 1970 poison prevention law.
Congress came up with a seemingly straightforward fix: The bipartisan Child Nicotine Poisoning Prevention Act, signed into law in early 2016, required liquid nicotine bottles to meet child-protective packaging standards that were already established, such as caps and flow restrictors. The CPSC would implement it.
Prefilled liquid nicotine pods that are sealed and contain less poison accessible to children, like those used by Juul e-cigarettes, were exempt.
But the CPSC did not fully enforce the law.
Last February, three years after the law passed, “as much as 100% of liquid nicotine containers do not comply fully,” a newly appointed CPSC commissioner revealed in a Twitter post, citing the flow restrictor requirement.
Feldman, a Republican, had helped write the law as a U.S. Senate staff member. His tweet called on CPSC to issue an “immediate stop sale order.”
Instead, the agency sent out a letter promising it would soon give the industry guidance about meeting the flow restrictor requirement, acknowledging its previous silence on the measure.
Feldman and another commissioner issued a statement criticizing the delay as unnecessary.
In March, CPSC put out complicated guidelines on testing bottles with flow restrictors to make sure they can spill no more than 2 milliliters of liquid at a time.
Documents obtained by USA TODAY show the CPSC’s then-acting chairwoman, Ann Marie Buerkle, proposed in July that enforcement be pushed off by an additional six months. Other commissioners rejected that idea.
“When lettuce is killing people, or giving people diarrhea, we recall all the lettuce,” said Jonathan Klein, a pediatrician at the University of Illinois at Chicago long involved in the American Academy of Pediatrics’ youth tobacco protection efforts. “There are some issues with these products that ought to be addressed now. And that was true five years ago.”
Illegal, dangerous bottles still on shelves
The CPSC has not announced a recall of any liquid nicotine product, a common way the agency protects consumers from other dangerous products. For poison prevention packaging violations alone, the agency has recalled more than a dozen products this year, from essential oils to craft glue.
One liquid nicotine brand with known problems was still being sold across the country in glass bottles without flow restriction. Reporters found “Naked 100” liquid nicotine in illegal bottles in California, Florida, New Jersey, Michigan and South Carolina in flavors such as “really berry” and “green lemon.”
The products were still readily available even though manufacturer USA Vape Lab’s website said it had voluntarily recalled four dozen products in July because they lacked flow restrictors. The company declined to comment further, citing a confidential agreement with CPSC over a “mutually agreed upon recall plan.”
The agency declined to comment on its handling of the product, saying in a statement “we do not discuss specific enforcement actions.”
Recalling liquid nicotine products presents “safety and logistical issues” for consumers, the CPSC said, citing the shipping and disposal of hazardous materials.
Although corporate penalties are rare, some manufacturers have received “notice of violation” letters from the CPSC telling them to stop sales and inform retailers – or risk large fines and even prison time, according to a copy obtained by USA TODAY.
This is an important step, but it falls short of making the public aware of the problem, said Rachel Weintraub, the Consumer Federation of America’s legislative director. A recall would help to remove the bottles already in households with young children.
“I am not seeing the rigorous compliance efforts that are necessary to protect consumers, especially children, from the dire hazard posed by liquid nicotine,” she said.
Weintraub reviewed photographs of the open bottles purchased by USA TODAY across the country and confirmed they appeared to violate the flow restrictor requirement.
The CPSC said in a statement that it has prioritized the law’s “most effective safety provision,” resulting in an “overwhelming majority” of liquid nicotine containers now being packaged with caps that children cannot easily open.
With this year’s push for flow restrictors, it added that “the marketplace appears now to be moving towards increased compliance.”
Many vape store retailers have noticed a shift to plastic containers with updated “unicorn” tube dispensers, saying they now make up most of their stock. These newer products appear to feature the required spill protection.
Liquid nicotine manufacturer Bad Drip Labs in Rochester, New York, said that it has been months since it has shipped out the dangerous bottle style that a USA TODAY Network reporter purchased.
“You can’t just turn on a light-switch and all of sudden your entire process is switched,” said Ken Gregory, one of the owners, adding that his company had tried to remove older products from some store shelves.
Industry rejects vaping ‘hysteria’
Vaping enthusiasts think the political backlash against the industry has been overblown.
Regulating manufacturers might not have saved the upstate New York toddler, because he was poisoned by a liquid nicotine solution that had been mixed and bottled at home.
Similarly, today’s calls for a flavor ban and to raise vaping’s age limit might not have prevented the latest outbreak of respiratory illnesses. Health investigators now think a key concern is an additive, vitamin E acetate, sometimes mixed into THC-containing vape products sold on the streets.
“There is a level of hysteria around vaping that is not necessarily tied to the actual data,” said industry lawyer Boaz Green, whose firm Keller and Heckman wrote to CPSC on behalf of trade groups and manufacturers, disputing that the law explicitly required flow restrictors.
Of the household hazards regulated by CPSC, the letter noted, only furniture polish also requires flow restrictors. More children were poisoned by bleach in 2017 than by liquid nicotine.
To pediatricians, however, liquid nicotine is a unique hazard, harmful through skin contact as well as ingestion. Bleach is like a mosquito bite – common but rarely serious – while liquid nicotine can be deadly with just a sip, said Quinlan, the pediatric injury expert.
In southwest Florida, Vape King owner Laura Kaman sells only products that she believes meet all the safety standards, including flow restriction.
She gained firsthand knowledge of the dangers: Her dachshund, Taco, once chewed on a low-nicotine bottle. Luckily, Taco was not harmed.
“Accidents can happen,” Kaman said.
That’s the worry of U.S. Sen. Richard Blumenthal, a Democrat from Connecticut. This fall, he and the Republican chair of the Senate subcommittee overseeing the CPSC wrote a joint letter demanding that regulators urgently remove liquid nicotine bottles without flow restrictors from stores.
Almost two months later, and after USA TODAY asked about the senators’ letter, the agency sent its response last week. Acting CPSC chairman, Robert Adler, said its market surveillance has found that while liquid nicotine products do have child-resistant caps, “a significant number failed to include flow restrictors.” It noted the agency was making the issue a priority.
“This lapse of enforcement is severe and serious and has left countless children at risk,” Blumenthal said earlier this fall, calling the poisoning regulations a case study in how an unenforced regulation is nothing more than an ineffective “dead letter.”
“It makes a mockery of the law,” he said.
Letitia Stein/USA Today