Florida is No. 1 in vape sales, so why aren’t retailers celebrating?

New regulations fail to attract vape shops.

Disposable vapes are a big business, especially in Florida, but it’s a legally questionable one.

According to data from Circana, Sunshine State vapers spent $410 million on disposables last year — nearly 10 times as much as New York, which has a comparable population of adult smokers.

Circana’s figure is based only on tracked channels, with some estimates suggesting the true total could be twice that amount when underground sales are added in.

One might think the sales figures would delight Florida retailers, but there’s an asterisk: About 90% of the disposables sold in Florida aren’t legal. Florida Retail Federation President Scott Shalley said that raises concerns about retailer responsibility.

“Let’s be clear, there is a place for vapes in the marketplace. This is really an issue of ensuring products have been properly tested, and that they’re not falling into the hands of minors,” Shalley said.

But the federal government needs to step up, too, Shalley added, asserting that current vape regulations are inconsistently enforced.

Like other nicotine products, vapes are regulated by the federal Food and Drug Administration. While nearly 26 million vape products have been submitted for FDA approval, the agency to-date has only approved about two dozen products, all of which are manufactured by Big Tobacco companies such as RJ Reynolds and Altria.

“We would like to see the federal government take action and to expedite the approval process out of fairness to all vendors,” he said. “We’d like to see them provide real clarity with regard to the FDA approved products.”

Flavoring is the key difference between FDA-approved products and their illegal competitors. All FDA-approved devices are tobacco flavored — the FDA has not even approved menthol. Most illegal vapes, however, have minty or fruity flavors that may potentially be more appealing to children.

But flavor is only one concern.

While vapes don’t contain many of the harmful chemicals in cigarettes or leave a lingering stench, they are by no means a “healthy” alternative to smoking. Cigarettes are the devil we know and vapes aren’t — even though nearly 95% of e-cigarettes, legal and illegal alike, come from a relatively small manufacturing district in China, the nicotine levels and potential contaminants vary greatly by brand.

Some anecdotal reports about laced vapes are disquieting. Attorney General Ashley Moody issued a consumer alert last year warning some vapes are laced with fentanyl. While the topline smacks of alarmism, there were indeed fentanyl-laced vapes found in Volusia County schools. Though the vapes in question were THC delivery devices, not nicotine ones, the lack of enforcement and lack of quality control has led to heightened anxiety among some parents, whose teenage kids are likely to see a vape in the wild daily.

The feds have the authority to seize illegal vapes when they enter the country, and they sometimes do — last month, U.S. Marshals confiscated about $700,000 worth of vapes in California. But that’s a drop in the bucket compared to the overall market, which measures in the billions of dollars nationally. The sheer volume only adds to the overwhelm for U.S. Customs and Border Protection agents, who are already performing under a political spotlight at the U.S.-Mexico border.

The state could potentially come help with enforcement, and Shalley said FRF is on board with the plan lawmakers passed during this year’s Session.

Sponsored by Palm City Republican Rep. Toby Overdorf, HB 1007 directs the Department of Legal Affairs under Attorney General Ashley Moody to develop and maintain a directory listing all single-use nicotine vapes it deems attractive to minors, and restrict their sale. The likely outcome is that many flavored vapes would be pulled from the market.

The strict requirement has rankled vape advocates, who say that the products that would be banned are how they made the transition from traditional cigarettes to the less-stigmatic vapes.

Shalley said regulatory certainty remains the top priority, however, and should the FDA approve the vapes Floridians are buying in record numbers, the proposed legislation would allow retailers to sell them. By contrast, maintaining the status quo would put both consumers, and the vape shops that cater to them, at risk.

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Florida Politics reporter Jesse Scheckner contributed to this post.