Elf Bar Circumvents U.S. Import Restrictions Through Strategic Rebranding

37

Four months subsequent to the U.S. Food and Drug Administration (FDA) issuing directives to confiscate imports of Elf Bar, a leading Chinese disposable e-cigarette brand, the products continue to saturate U.S. markets, chiefly due to a name change.

Retail outlets in key cities such as Washington D.C., New York, and Philadelphia persist in offering the vibrantly packaged e-cigarettes, which come in flavors like strawberry melon and boast up to 5,000 “puffs” per unit.

Earlier in May, the FDA had instructed customs officers to detain incoming shipments of Elf Bar along with EBDesign, another brand under the same parent company. The recent iterations of these vaping devices now go by a new brand name, EBCreate, and indicate different Chinese manufacturing entities than those previously flagged by the FDA.

This alteration draws attention to the limitations of the FDA’s capability to prevent the unauthorized entry of e-cigarettes into the U.S., often facilitated through major shipping centers like Los Angeles and Houston.

Desmond Jenson, an attorney specializing in public health law, stated, “E-cigarette manufacturers have consistently demonstrated a lack of good faith. Unless a global deterrent against selling unauthorized products is established, the present situation will persist.”

Various advocacy groups, including the one represented by Jenson, have pressed the FDA to mandate unique identification codes on all FDA-regulated tobacco items. This would enable customs officers to identify and confiscate illegal imports. Yet, despite having the legislative authority for nearly a decade and a half, the FDA has not proposed such a system.

Brian King, the FDA’s tobacco director, emphasized that the agency is closely observing companies that resort to brand alteration to evade scrutiny. In a formal statement, King affirmed that the FDA has a range of measures to counter such tactics, including adding new brands to its import alerts.

Data published in June by The Big Big News revealed that the variety of e-cigarettes available has tripled to over 9,000 since 2020, with Chinese-manufactured disposables accounting for most of this surge. These products primarily feature candy and fruit flavors, making them particularly appealing to teenagers.

According to Nielsen, a retail data tracker, Elf Bar has generated over $271 million in U.S. sales in the past year alone. Public records indicate the agility with which Elf Bar rebranded itself following the FDA’s import ban announcement in May. A mere two weeks later, a trademark application for EBCreate was filed by the same patent attorney who had filed for Elf Bar’s earlier brands.

The new products also feature the same QR codes and licensing numbers as before, further complicating efforts to distinguish them from the banned items. Meanwhile, calls and emails to iMiracle Shenzhen, the parent company of Elf Bar, have gone unanswered.

The FDA’s primary enforcement tools remain warning letters, which serve notice for violation of FDA regulations but have no legal ramifications. To date, iMiracle Shenzhen has not received any such warnings from the FDA, which itself is yet to fully utilize its authority to confiscate unauthorized inventory from sellers.

Recent actions by the FDA have focused on penalizing retail outlets like gas stations and convenience stores selling disposable e-cigarettes. Although the FDA has threatened to levy fines and has issued a series of warnings, experts criticize its lackluster efforts to effectively remove illegal products from the marketplace.

This case exemplifies the broader challenge that U.S. customs officials face in identifying and intercepting illicit goods among the multitude of daily incoming shipments, a problem that extends beyond e-cigarettes to encompass a variety of banned items.

Follow Matthew Perrone on Twitter: @AP_FDAwriter

Note: The Big Big News Health and Science Department is supported by the Howard Hughes Medical Institute’s Science and Educational Media Group. The AP holds sole responsibility for all content.

Frequently Asked Questions (FAQs) about Elf Bar Rebranding

More about Elf Bar Rebranding

• FDA’s Regulatory Authority Over Tobacco Products
• U.S. Customs and Border Protection’s Role in Importing Goods
• Public Health Law Center’s Advocacy on E-cigarettes
• Nielsen’s Retail Data Services
• U.S.-China Trade Relations
• Impact of E-cigarettes on Youth
• Opioid Crisis and Chinese Chemical Imports