WASHINGTON – The tobacco giant RJ Reynolds is threatening to sue small vape shops if they do not stop selling flavored vapes, according to two letters obtained by STAT.
The letters, both of which were sent in March, give the vape shops just a few days to confirm they will no longer sell flavored tobacco products. Failure to comply could result in “legal action, and the costs, attorneys’ fees, and adverse publicity to which a lawsuit would subject [the vape shop],” the letters warn.
The letters, which were sent to stores in New Jersey and Alabama, also warn that the shops are violating local laws regulating the sale of flavored tobacco. The New Jersey letter also copies the county prosecutor where the vape shop is located, in an apparent attempt to notify the local authorities of the violation.
The letters are the latest example — and a marked escalation — of Reynolds’ campaign to force a crackdown on illegal vaping products. In February, the company petitioned the Food and Drug Administration to ban flavored disposable vapes, and it is supporting legislation in Congress that would do the same.
The letters also highlight tobacco companies’ growing frustration with the FDA’s scattershot enforcement approach toward flavored vapes. While all of these products are currently illegal, the FDA has only issued warning letters to a smattering of manufacturers. One of Reynolds’ letters, for example, notes that the shop is selling Elf Bars, an increasingly popular disposable vape, which the FDA has not taken any enforcement action against to date.
The letters prompted a mixed reaction from both critics of e-cigarettes and vocal proponents of promoting vaping as a safer alternative to cigarettes.
Eric Lindblom, a senior scholar at Georgetown University’s O’Neill Institute, who is critical of vaping companies, argued that Reynolds’ efforts could ultimately help public health — especially given the FDA’s struggles to police the market of flavored vapes — but, he added, “there’s something distasteful about these kinds of heavy-handed anti-small business tactics.”
“Reynolds shouldn’t have to do this,” added Lindblom. “FDA could have taken care of this problem.”
Clive Bates, an independent consultant and vocal proponent of tobacco harm reduction, also criticized Reynolds.
“I do not think Reynolds should be hounding vape shops for selling life-saving products to their regular customers,” Bates wrote in an email. “It should not be picking on little guys, but pressing federal bureaucracies to do their job, and do it better.”
A company spokesman argued that the letters “show the importance that Reynolds places on removing these illegal products from store shelves and away from underage consumers.”
Reynolds’ legal threats also come on the heels of a 2022 letter that it sent to its own retailers and wholesalers, warning that they “have an obligation to act responsibly in their own sales and marketing practices, including by selling only products that may be legally marketed.” That letter, which STAT also obtained and which is dated June 20, 2022, warned that selling illegal products could result in “consequences up to and including termination of your [Reynolds] contract.”
The earlier bulletin did not, however, mention that the company might start suing vape shops.
It’s unclear how many letters Reynolds has sent to vape shops. A spokesperson said that the company has sent similar letters to “retailers across the country that we learned were selling illegal products in violation of flavored tobacco bans,” but did not specify how many letters had been sent.
Reynolds’ focus on enforcing flavored tobacco bans is noteworthy, given the company has actively opposed flavor ban legislation across the United States. Most recently, the company asked the U.S. Supreme Court to overturn California’s flavored ban on flavored vapes and menthol cigarettes. The company subsequently launched a line of “crisp” cigarettes, which legal advocates have argued violate the state law. Reynolds has argued the cigarettes can be legally marketed in the state.
The two letters STAT reviewed were sent to shops in New Jersey and Alabama; the names of the shops were redacted. It’s also unclear if Reynolds is threatening legal action against the companies manufacturing these products. Elf Bar, for example, is owned primarily by Zhang Shengwei, a Chinese businessman who has reportedly become a billionaire thanks to his company’s surging popularity.
It doesn’t appear that Reynolds has actually sued any vape shops selling flavored products. But the company, if it chose to sue, would likely do so under a state’s unfair competition law. In both letters, the attorneys argue that selling flavored tobacco products violates those laws because the sale of unauthorized products “has harmed and continues to harm” Reynolds’ vapor business.
The letters do not specify how Reynolds has been harmed. When asked about the claim, a spokesperson said “retailers that break the law threaten to undermine the potential of tobacco harm reduction to move adult smokers who have chosen not to quit to consider potentially less-risky alternatives by stocking shelves with unregulated, illegal products from unknown sources.”
It’s also likely that the company, were it to sue, would argue that being forced to compete with illegal products cuts into its legal business.
It’s true that disposable flavored vapes, like Elf Bar, are becoming an increasingly large part of the vaping market. But Reynolds’ claim that it’s being harmed appears to contradict recent remarks by the CEO of RJ Reynolds’ parent company, British American Tobacco, who has told investors that the growth of disposables in the United States has not impacted the company’s business negatively.
“What’s very interesting to see is that the vapor — traditional vapor pods has continued to grow. It did not replace one another,” he said on a February 2023 earnings call, where the company touted that Vuse is the fastest-growing nicotine product in the United States. “I mean, the numbers speak for themselves.”
STAT’s coverage of the commercial determinants of health is supported by a grant from Bloomberg Philanthropies. Our financial supporters are not involved in any decisions about our journalism.