Starting from Jan. 1, 2024, a new Texas law will make it illegal to sell vaping products in packaging that includes images of fruit, juice, cartoons, or celebrities. The law, called the Protecting Children from Electronic Cigarette Advertising Act, aims to prevent the marketing of vaping products to minors, but it could also affect the availability and appeal of vaping products for adult consumers.
• Depicts a cartoon-like fictional character that “mimics a character primarily aimed at entertaining minors”
• Imitates or mimics trademarks or trade dress of products that are or have been primarily marketed to minors
• Includes a symbol that is primarily used to market products to minors
• Includes an image of a celebrity
• Includes an image that resembles a food product, including candy or juice
The law applies to all types of vaping products, including e-cigarettes, e-liquids, pods, and disposables. The law does not affect the flavor or ingredients of the vaping products, only the packaging.
The law was passed by the Texas legislature with almost no opposition in June 2023, and signed into law by Governor Greg Abbott on June 17. The law was reportedly inspired by the 2023 National Youth Tobacco Survey, which showed that disposable e-cigarettes were the most commonly used e-cigarette type among U.S. youth, and that nearly nine out of 10 current e-cigarette users used flavored e-cigarettes, with fruit flavors being the most popular.
The law was also influenced by the popularity of Elf Bar, a brand of disposable e-cigarettes that features colorful packaging with images of fruit and juice. According to the survey, Elf Bar was the most commonly used brand among youth e-cigarette users. However, according to an industry insider, many of the Elf Bar products sold in the U.S. are likely counterfeit products that imitate the original brand.
The law will be enforced by the Texas Department of State Health Services, which will have the authority to inspect and seize any violative products. Violating the law can result in a Class B misdemeanor conviction, punishable by up to six months in jail, and a fine of up to $2,000. Retailers convicted of selling products in illegal packaging can also face civil penalties of up to $3,000, and suspension or revocation of their sales permits.
The law has been criticized by some vaping advocates and industry representatives, who argue that the law is unnecessary, ineffective, and harmful to the vaping market. They claim that the law will not prevent youth access to vaping products, as minors can still obtain them online or from other sources. They also claim that the law will reduce the variety and availability of vaping products for adult consumers, who may rely on vaping as a safer alternative to smoking. They also point out that the law could hurt the legitimate manufacturers and importers of vaping products, who may have to change their packaging or lose their market share to counterfeit products.
The law has also been challenged by some legal experts, who question its constitutionality and compatibility with federal law. They argue that the law violates the First Amendment rights of free speech and expression, as it restricts the use of images and symbols that are not misleading or deceptive. They also argue that the law conflicts with the federal Tobacco Control Act, which preempts state laws that regulate the labeling and advertising of tobacco products, including e-cigarettes.
The law is expected to face legal challenges from the vaping industry or other parties,...