Advertising vapes to children would bring hefty fine under proposal passed by SC Senate

COLUMBIA — E-cigarette manufacturers could not advertise any of their products to children, and only certain vapes would be available at stores under legislation the Senate approved unanimously Tuesday.

The bipartisan bill, which is meant to crack down on youth vaping, has the backing of educators and law enforcement. But one business owner told the SC Daily Gazette it could hurt smoke shop owners and adults who are trying to quit smoking.

The bill would create a statewide registry of e-cigarettes approved to sell in the state based on what’s approved by the federal Food and Drug Administration.

As of last week, the FDA had approved the sale of about two dozen e-cigarettes produced by three different companies. However, the bill passed Tuesday goes beyond that approved list to account for backlogs at the federal level. It would allow the sale of any product already in the application or denial process.

Selling unapproved vapes is already illegal, but the bill would give that federal rule teeth by adding a fine of $1,000 per day per unregistered product on a store’s shelves. Manufacturers would also have to pay $2,000 with each application to get a product on the registry, meant to offset the cost of hiring nine new state police officers and one attorney to enforce the bill. On top of that, companies would face fines for advertising to children.

The goal is to reduce the number of nicotine products in the hands of children. Despite the fact that it’s illegal for anyone under the age of 18 to buy e-cigarettes, children are getting vapes, particularly those flavored like fruit and candy, senators said.

In 2020, 47% of South Carolina high schoolers reported that they vaped, according to the latest stats available from the Department of Alcohol and Other Drug Abuse Services. Schools have confiscated hundreds of e-cigarettes from teenagers, many of which look like makeup brushes, highlighters and flash drives, making them easy to hide, senators said.

Vaping, particularly at a young age, can have health effects including lung damage and seizures, according to the FDA.

By narrowing the registry to only e-cigarettes with flavors like tobacco or menthol — the only ones with the federal OK — children will be less likely to pick up vaping, senators said.

Amid ‘epidemic’ youth vaping, SC bill aims to crack down on sales of illegal e-cigs

Advertising

But the original bill didn’t go far enough, argued Sen. Deon Tedder.

At his suggestion, the Senate added fines for companies that advertise e-cigarettes in a way that might entice children.

“What we don’t want is the vapes being advertised on ‘Paw Patrol’ or the like,” the Charleston Democrat said.

Boasting flavors such as candy, lollipop, ice cream or cake would not be allowed under the amended bill. The packaging could not feature cartoons, superheroes, video games or movies.

Companies would also have to consult demographic data before placing advertisements for e-cigarettes online, on TV or in a newspaper to make sure the audience was primarily 18 or older. Billboards advertising vapes would not be allowed within 1,000 feet of a school, playground or youth center.

Violating any of the advertising regulations would be subject to escalating fines, starting at $500 for a first offense and going up to $3,000 for a fourth offense within three years.

Restricting advertising could cause problems for companies selling their products legally, said Sen. Billy Garrett, one of the bill’s co-sponsors. Besides, Garrett argued, the point should be moot if the registry works correctly, and stores stop selling their kid-friendly products.

“It’s not logical that a person’s going to put up on a billboard an advertisement for a product that’s illegal,” said Garrett, R-Greenwood.

Sen. Tameika Isaac Devine, D-Columbia, said the state should do everything it can to make sure no companies advertise nicotine products in a way that seems attractive to children.

“As a parent, I’m very concerned about vaping,” Devine said. “I honestly don’t feel like the federal government or the state government has kept up with how aggressively they are targeting our children.”

Concerns about business

While restricting what vape shops can sell might keep e-cigarettes out of the hands of children, it would hurt adult buyers who prefer those sweet flavors, said Andrew Bagley, who owns Illuminati Smoke Shop in Columbia and Camden.

Flavors like bubblegum and watermelon sell significantly better among adults, he said.

“People prefer flavor,” Bagley said. “That’s why, when you walk into a gas station, you don’t see unflavored sodas.”

With a smaller selection, composed of brands people may not prefer, Bagley said he expects many people who rely on vapes as they quit smoking to return to traditional cigarettes.

Instead of putting limits on all retailers, wholesalers and manufacturers, legislators and law enforcement officers should focus on the companies selling to minors, Bagley said.

He suggested raising the state’s legal age for buying nicotine from 18 to 21, increasing penalties for shops found to be selling to minors or mandating ID scanners similar to the ones used in some Columbia bars.

“If the concern was truly about protecting children, that’s a much more logical step,” Bagley said.

Tedder raised concerns over backlogs in the FDA’s approval process cutting some businesses off from legally selling vapes. Companies already in place in 2016 were grandfathered into the FDA’s vaping regulations. Under the bill, they would be allowed to submit a pending application or appeal of a denial to get their products on the registry.

But newer businesses would need full FDA approval, which is slow in coming, Tedder said.

“They can submit the applications, but who knows when or if they will ever be able to operate in South Carolina?” Tedder said.

Those concerns were not enough for Tedder to oppose the bill. With a promise from Garrett to consider the registry again next year, Tedder joined the 38 other senators in the chamber in voting to send the bill to the House.