
According to Deputy Assistant Attorney General Arun Rao, some e-cigarette manufacturers have responded to FDA denials of their product authorizations by making minimal alterations to their products and resubmitting them for approval. Additionally, some overseas e-cigarette makers misrepresent shipments in an effort to slip past regulators, and some stores create their own products. These factors have made illegal e-cigarettes all too accessible.

The US Senate Judiciary Committee expected the FDA to take specific actions following the court's deadline on e-cigarette pre-authorization, which was September 9, 2021. The committee wanted the FDA to order every unauthorized e-cigarette product off the market, as they were violating the Tobacco Control Act by not having FDA pre-authorization. Since the deadline, an estimated 2.1 million children have used e-cigarettes regularly, with the majority using flavored products. The committee showed displeasure at the FDA's lack of action and urged them to establish a clear plan to tackle the issue of youth vaping and the illegal sale and distribution of e-cigarettes.

Since the missed FDA deadline, an estimated 2.1 million children have reportedly used e-cigarettes regularly. The majority of these children, approximately 85%, are using flavored products.