UK and US Vaping Policies Are Headed in Wrong Direction

Vaping products are not riskless, but they are substantially safer than smoking and probably the most effective tool for adult smokers trying to quit. Vaping provides nicotine without the harmful effects of burning tobacco and is also satisfying in addressing the ritualistic aspects of smoking. UK health authorities have even encouraged hospitals to hand out free vaping starter kits to recruit smokers into cessation programs. 

In short, the science on vaping, while not entirely settled, points to a fairly obvious policy recommendation. Regulate vaping products to ensure they are safe, don’t let children access them, and tax them at a fairly low rate so that you nudge smokers towards vaping. UK policy has historically followed this approach, but today is wavering. US policy has always been a mess and is getting worse.  

My ongoing research indicates that US and UK authorities are driving the market for vaping products underground. In the US this is happening by increased enforcement of existing laws and in the UK it’s happening by banning disposable vapes and other popular products. Driving vaping underground will have dangerous consequences for health. 

Confusing US Policy and Its Damaging Results

US government policy remains equivocal about the relative benefits of vaping. The US Food and Drug Administration (FDA) has approved a few vaping products, but FDA communications (along with communications from other relevant federal agencies) focus more on the potential risks of vaping, especially to youth, rather than its role in smoking cessation in adults. 

As leading tobacco regulation analyst Clive Bates explains, the FDA has created “almost insurmountable regulatory hurdles and barriers to entry for vapes.” The strict legal sanctions the FDA levied in 2019 against US vape pioneer and previous market leader Juul, preventing it from selling flavored products, has not been followed up with further significant action against manufacturers or, until recently, retailers selling similar products from companies based outside the United States. The FDA has instead effectively left a legal void by denying approval to thousands of products but failing to prevent those and similar products from reaching the market. 

The legal limbo the FDA has created has encouraged a massive illegal market in the US. In a recent analysis of discarded vaping packs conducted across several states by the market research group WSPM, an astonishing 97% were not legal in the United States. As I documented in my own recent research, the FDA has made it difficult for products to be sold legally but historically has not enforced the confusing laws it established. The result is hundreds of illegal products on sale in stores that both operate legally, and every other product they sell is authorized, often by the FDA.

What I Found

Since restrictions eased during the pandemic, I’ve been undertaking small samplings of discarded vaping products in London and Philadelphia. Hundreds of samples were collected in the same locations (train stations and malls) over the past three years. Sampling was not truly random so results from the comparisons can only be indicative of possible changes; they do not provide compelling evidence. 

Having said that, in both markets at each sampling, progressively more illegal products are found in discarded packs, suggesting an actual trend. 

US FDA Increases Enforcement

Over the past three years, I found an increase in illicit vaping products amongst those discarded in Philadelphia. In 2022, 90% were illicit, in 2025 nearly everything (97%) was, which is directly in line with other more detailed research. 

Part of the reason for this increase may be because in the last year, the FDA has started going after legal retailers of products of dubious legality, threatening them with fines and other legal actions. 

Several convenience store owners I spoke with in the Philadelphia suburbs are pulling products from their shelves as a result. Stores were all making more than $2,000 per week in vaping sales revenue in 2024 but were sent warning letters by FDA in the fall or early winter 2024. Each letter demanded they stop selling these products. 

None of the store owners were sure how serious FDA threats might be, but one of the owners had removed all problematic vaping products from his store and was left with just three brands on sale, all tobacco flavors made by Reynolds American tobacco company. According to retail records from the stores, tobacco-flavored vapes are not actually very popular. Fruit flavors made by market leaders Elf Bar and Lost Mary tend to be far more popular. One store owner said he was obviously losing money but didn’t want a “raid and legal headaches.” Another owner had not changed products on sale yet but was thinking about it. Every owner I spoke with had taken “legal advice.” All of these retail business owners still earn far more from cigarette sales, so they are not worried about the loss of the vaping market, but they are concerned about their overall business so removing products of dubious legality makes sense. 

The products they were selling are the exact same products now being sold by drug dealers in seedy parts of the city and in car boot sales across suburbs. One illicit dealer I interviewed was making over $700 per week selling disposable vapes. That isn’t much money compared with his narcotics business but he was making almost nothing a year ago. All traders watch for changes in demand and if people cannot buy vapes legally, illicit sellers are happy to supply them. 

The prices charged by the illegal sellers I spoke with are similar to those of legal sellers, probably because supply is plentiful. But if enforcement actions continue against the remaining legal sellers the entire market may move underground, which is worrying for myriad reasons.

Many illicit products could be dangerous and pose health risks to consumers. Restricting access to vapes could paradoxically increase smoking rates again, as vapers, many of whom are former smokers, revert to combustible tobacco, which is both more readily available and more deadly. This will generate far higher tax revenue for governments because cigarettes are taxed more than vapes and the vast majority of their sales are legal and hence taxed, whereas increasing amounts of vaping sales will be underground and untaxed. This will ultimately worsen public health outcomes but may not be considered a bad outcome by debt-ridden jurisdictions.

UK Moving in Wrong Direction

The US market was already mainly illicit in 2022, but my discarded pack samplings show a more startling change occurring in London. In 2022 only 2% of the sample was illegal, whereas in February 2025 nearly a third (31%) was illicit (a jump from 7% to 31% in the past year alone). 

It appears that UK policy efforts against single-use or disposable vaping products may be driving (that part of) the market underground. And my research is backed up by increasing amounts of illicit products seized at the border and elsewhere in the UK. It is not entirely clear why the market is moving underground so quickly because the UK ban on disposable vapes does not come into force until this June. 

Perhaps some retailers have already stopped ordering disposables and wholesalers and importers (legal or otherwise) are finding other markets for these products. But according to regulatory expert, Clive Bates, it is more likely that UK vapers “prefer the products with larger tank sizes” that are increasingly available in the US but are new and illegal in the UK.

To back up Bates’ suggestion, several of the illegal products found in the discarded packs had large tanks, such as Jackaroo with a 5ml tank. At least a third of the illicit products had tank sizes well above the 2ml limit (including Voopoo). Having said this, some of the products with large tanks also breached other rules about nicotine content or other ingredients like caffeine, so the drivers of the underground market are not tank size alone. 

I spoke with a variety of industry experts, and they all said that it’s easy to put a charging port in the bottom of many disposable devices, and hence they turn disposables into non-disposable products. So they too believed that “tank size” was the main reason for the increase in illicit sales in the UK. 

My ongoing research and other larger and more detailed studies can shine more light on whether there is indeed a substantial increase in the illicit market in the UK, and if so, the reasons for it. 

Better Policy Possibilities

President Trump will soon have a new head of the FDA, Dr Marty Makary. One of his early tasks must be to speed up the approval of good-quality vaping products that are currently in legal limbo. A robust legal market of products consumers actually want is the best way to undermine illicit trade. 

The UK illicit market is small at present, with the majority of products found in discarded packs still being legal. However, the number of illicit products in the most recent survey was far higher than just a year ago; many being larger tank models. The UK should revert to its former position of encouraging good quality products on the market and reverse its ban on disposable products and those with large tanks. Recent evidence shows that smoking rates are rising for the first time in 20 years and this is likely linked to the clampdown on vaping.

My sample sizes are small and may not reflect the wider market. But if they are robust, they point to terrible outcomes for public health. Smoking is the real threat and any restriction on the vape market will probably lead to an increase in smoking. Hopefully, the products consumers want will be approved for sale on both sides of the Atlantic. When that happens sensible tax policies to encourage switching from smoking to vaping will be vital.