Durbin Releases GAO Report Detailing FDA & DOJ’s Failure To Crack Down On The Thousands Of Kid-Friendly Flavored Vaping Products Illegally On The Market

Durbin Releases GAO Report Detailing FDA & DOJ's Failure To Crack Down On The Thousands Of Kid-Friendly Flavored Vaping Products Illegally On The Market

Durbin requested the report to examine how FDA and DOJ are coordinating enforcement actions against illicit vaping products

CHICAGO - U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today released the Government Accountability Office's (GAO) newly-completed report examining the Food and Drug Administration (FDA) and the Department of Justice's (DOJ) interagency enforcement activities related to the sale of unauthorized e-cigarettes. In August 2024, Durbin requested the report from GAO as FDA neglected to complete its long-overdue review of pre-market tobacco product applications (PMTAs) from e-cigarette manufacturers or take enforcement actions against addictive, kid-friendly e-cigarettes being unlawfully sold.

This new GAO report, which is entitled "Combating Illicit Substances: DOJ Enforcement of Unauthorized E-Cigarettes," confirms that thousands of kid-friendly flavored e-cigarettes are being illegally sold while FDA and DOJ, which established a multi-agency task force to combat the sale of illicit vaping products, have largely failed to take significant enforcement action against the illegal products. The GAO report reveals new findings about the limited enforcement action taken, lack of coordination, and diversion of DOJ resources away from tobacco enforcement to unrelated immigration priorities of the Trump Administration.

Under the 2009 Family Smoking Prevention and Tobacco Control Act (TCA), no tobacco product can enter the market unless its manufacturer first proves to FDA that it is "appropriate for the protection of public health." Despite this pre-market authorization requirement, FDA has repeatedly failed to review and process e-cigarette applications despite deadlines set by Congress and a federal court. As the GAO report lays out, these illegal products have flooded the market and continue to be sold because of FDA and DOJ's inaction.

"The law is clear that e-cigarettes must obtain FDA authorization to enter the market, yet thousands of vapes are unlawfully and brazenly sold in stores and online by retailers nationwide. This GAO report helps shed light on FDA and DOJ's failure to protect children from a lifetime of nicotine addiction. Despite court mandates and congressional deadlines, thousands of dangerous, kid-friendly e-cigarettes are still on the market illegally," Durbin said. "FDA and DOJ must use their enforcement tools instead of cowering to the tobacco industry. The health of our kids depends on it."

Main takeaways from GAO's report include:

• While only 39 e-cigarette products were lawfully on the market at the time of the report's compilation, approximately 6,000 unauthorized e-cigarette products were identified as being sold illegally, all of which are subject to potential DOJ action; however, since Fiscal Year 2022 (FY22), DOJ has only taken civil or criminal enforcement action in 88 instances. This GAO report has confirmed thousands of flagrantly kid-friendly flavored e-cigarettes are being readily sold, but FDA and DOJ have only taken action against one percent of what are likely illegal products.

• DOJ enforcement resources used to protect children from illicit tobacco products and crack down on violations of the law were diverted by the Attorney General to focus on immigration in February 2025. Additionally, DOJ's Consumer Protection Branch, which was responsible for all civil and criminal judicial matters regarding FDA violations related to e-cigarettes, was disbanded in September 2025.

• DOJ has no formal written process guiding how it should prioritize e-cigarette referrals from FDA. Since FDA does not have independent litigation authority, the agency relies on DOJ to take enforcement action against e-cigarette companies violating the law. Instead of a formalized process, DOJ's decision on whether to escalate enforcement actions against a noncompliant tobacco manufacturer, distributor, or retailer is subject to resources, priorities, and subject matter knowledge. Further, DOJ has not assessed the resources required for e-cigarette enforcement efforts, due to limited action. The lack of a detailed process for how FDA can refer cases to DOJ may contribute to the lack of enforcement action against flagrantly noncompliant e-cigarette companies.

• The FDA and DOJ task force can make an impact when leveraged to crack down on illegal e-cigarette products. The joint task force played a role in multiple joint actions, including three large seizures in a 12-month period between October 2024 and September 2025, resulting in seven million illicit vaping products being taken off the streets.

A copy of the final report can be found here.

Durbin has been a vocal leader in the fight against Big Tobacco since he lost his father to lung cancer when Durbin was 14. He went after Big Tobacco when he served in the House of Representatives and led the charge to ban smoking on airplanes, which eventually led to bans on smoking in restaurants, office buildings, trains, and other locations. Durbin has also led efforts to grant FDA jurisdiction over tobacco, raise tobacco taxes to prevent youth initiation, and enhance support for tobacco cessation tools.

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