VTA REGULATORY ALERT: Shell’s Removal of E-Cigarettes Directly Conflicts with Trump Administration Directives

Published on July 17, 2026

Dear Mr. Sawan:

I write on behalf of the Vapor Technology Association (VTA), the U.S. trade association representing the interests of manufacturers, distributors, wholesalers, retailers and consumers of nicotine vaping products – regarding Shell’s recent decision to remove from its associated retail locations electronic nicotine delivery systems (ENDS), also known as e-cigarettes or vapes. Shell’s Business Risk Assessment and Mitigation violation notification (attached) was sent out widely in June in response to a policy change by Mastercard. While I am sure you are aware of this action, I write to ensure you are also aware that Shell’s June BRAM notification direct conflicts with the FDA’s recently articulated enforcement guidance and, therefore, undermines the Trump Administration’s efforts to comprehensively address vaping regulations.

Brief Background on Vaping Regulation Your action was premised on the claim that all tobacco products are illegal under the 2009 Tobacco Control Act (TCA) unless first authorized by the FDA. At first blush, this simple, accurate statement is compelling. But nothing is ever simple, particularly in the world of tobacco regulation. Because vaping products were already on the market for many years before they were first regulated as tobacco products and subject to the premarket requirements of the TCA, the regulations which made them subject to those requirements necessarily permitted products to remain on the market as the regulatory process unfolded, always subject to FDA’s exclusive enforcement discretion. Hence, during the entire time that vaping products have been on the market, Shell retailers have been selling tobacco products without premarket authorization due to their being unregulated, or by design of subsequent federal regulation, or by court orders, and/or pursuant to FDA’s exclusive enforcement discretion. This begs the question of why such dramatic action is being taken now when the same position could have been taken at any time in the past eight years?

It is true that the FDA has authorized a small number of ENDS products on the list cited in your BRAM notice. However, the true number of commercially available products on that list is dramatically smaller (about 10-14 unique devices, of which even fewer are available in your stores).¹ The paucity of FDA authorizations is the direct result of ideological opposition to ecigarettes by the prior Administration and the overburdensome, opaque requirements and lack of a clear standard of review. As a result, vape companies have had to contend with changing requirements, shifting goal posts, unlawful denials, histrionic narratives, and FDA’s inability or refusal to authorize products, with all the prior Administration’s efforts directed toward eliminating flavored vaping products.²

For this reason, President Trump made his campaign promise in 2024 to save flavored vaping, just as he did in 2019.³

In its second term, the Trump Administration has been working to fix the broken regulatory system it inherited, save vaping, protect consumers, protect youth, and protect an industry which generates more than $33.0 billion in total economic impact in the U.S.

Shell’s Action Undermines and Conflicts with the Administration’s Goals and Regulation

Shell’s BRAM notification states, “These notices are part of broader enforcement efforts across the industry to ensure alignment with FDA regulations” and directs stores to ensure that “any unauthorized e-cigarette or ENDS products are removed from store shelves,” and that “only FDAauthorized products, based on the FDA’s latest approved list, are offered going forward.” However, Shell’s action is complete misalignment with FDA regulations.

In early May, President Trump made clear that FDA needed to move faster to save flavored vaping products.⁴ As a result, on May 8, 2026, FDA announced a major regulatory enforcement directive in a final guidance entitled Enforcement Priorities for Certain New Tobacco Products Marketed Without Premarket Authorization.⁵ Contrary to position taken in Shell’s BRAM notice, FDA does not and will not treat the list of authorized products as the sole determiner for whether products should remain on the market pending review of the products’ applications by FDA.

To wit, FDA stated it will not prioritize enforcement of the premarket authorization requirement for certain ENDS products that are part of FDA’s compliance review process and clearly articulated FDA’s parameters. Also, to provide clarity to the marketplace, FDA announced that it “will create and maintain a public-facing webpage identifying manufacturers and associated products that FDA generally does not intend to prioritize enforcement against.” Further, FDA stated it would target its efforts and prioritize enforcement to protect youth by focusing on products with “presumptively underage-appealing elements such as depicting a cartoon-like fictional character, disguising its nature as a vaping product, or resembling a children’s toy, phone or gaming platform.”⁶ Thus, based on the FDA’s May announcement, it is now certain that Shell’s extreme restriction on the availability of ENDS products will be completely out of step with the FDA’s enforcement discretion list when published.

Yet, all Shell stores and associated retailers are being instructed to indiscriminately remove virtually all vaping products, including those sold by American companies that are actively engaged in FDA’s compliance process, which the FDA itself has said are deserving of enforcement discretion and products which raise none of the youth or safety issues being targeted by the Administration. Shell’s sweeping removal of vape products not only conflicts with the FDA’s declared policy and regulations, but it will undermine Administration efforts to save vaping.

You should be aware that, in addition to the commercial disruption this is causing long-standing business relationships, Shell has been drawn into a contentious political debate over consumer choice. There are 25 million adult vape consumers in the U.S. Market data shows that more than 90% of them are purchasing flavored ENDS products that are not on the FDA authorized list. Vaping consumers are very protective of their right to choose because quitting smoking is extremely difficult and individualized – they want what works for them. Similarly, vaping voters are highly engaged in defending their rights and strongly disfavor vaping bans or being told what they can and cannot use.

This is important because, given the paucity of e-cigarette options on the “FDA-approved list,” your BRAM actions amount to a ban on flavored e-cigarettes which tens of millions of adult consumers are using as their preferred alternatives to smoking. Not only has the science concluded that vapes are dramatically safer than cigarettes, but it has also concluded that they are the most effective tool on the market to help Americans quit smoking. And yet, based on your recent action, low margin cigarettes – which kill half a million Americans every year, making them the number one cause of death and disease in the U.S. – remain ubiquitously available in your stores.

In light of the foregoing, we strongly encourage Shell to immediately bring its policy in alignment with the Administration’s regulation and to address the damage currently unfolding by:

1. Immediately announcing a reversal of Shell’s recent BRAM notifications; and

2. Waiting for the Trump Administration to complete its work and then act based on the FDA’s published list of products receiving FDA enforcement discretion.

Of course, if you believe some form of current action is necessary, we suggest a targeted BRAM notification addressing tobacco products “with presumptively underage-appealing elements such as depicting a cartoon-like fictional character, disguising its nature as a vaping product, or resembling a children’s toy, phone or gaming platform,” as specified by the FDA.

This approach will allow Shell to accurately target product removals based on the Administration’s priorities and forthcoming list. As importantly, this approach will eliminate the serious commercial chaos your stores are presently dealing with, will protect the business relationships that are being unnecessarily disrupted, and will protect millions of your adult customers’ access to the less harmful vaping products they both want and need.

Thank you for your time in considering this matter. We would welcome the opportunity to provide additional information and work constructively with you in addressing this important, complex and evolving regulatory environment.

Sincerely,

Tony Abboud Executive Director

Enclosure

¹Most of the authorized products are antiquated (8-15 years old) and, therefore, widely unavailable on or already removed from the market, or barred from the market due to patent litigation. And given the list is devoid of flavored vaping products, the list is largely irrelevant to 90% of American vaping consumers frequenting your stores.

²Your stores know the critical importance of flavored vaping products, especially those not on the FDA approved list, to their bottom line, given that the margins for flavored vapes far exceed the margins for cigarettes (inventories of which they are forced to carry despite fewer and fewer Americans purchasing cigarettes).

³In 2019, President Trump executed a targeted action directed at the flavored products that all the kids were using and he exempted from that partial flavor ban the very products you are now removing from your store shelves today.

⁴Choi, Joseph and Weixel, Nathaniel, FDA drops guardrails on vaping industry in major Trump pivot, The Hill, May 18, 2026, at https://thehill.com/policy/healthcare/5880802-flavored-vapes-fda-guidance/.

⁵FDA Issues Guidance on Enforcement Priorities for Unauthorized ENDS and Nicotine Pouch Products, May 8, 2026, available at https://www.fda.gov/tobacco-products/ctp-newsroom/fda-issues-guidance-enforcement-prioritiesunauthorized-ends-and-nicotine-pouch-products.

⁶One year ago, VTA loudly called on the Administration to take this action. VTA Press Release: One-MillionDollar Ad Campaign Launched by VTA Urging Immediate Action to Remove Youth Targeted Vapes, July 14, 2025.

THIS DOCUMENT IS NOT INTENDED NOR SHOULD BE RELIED ON AS LEGAL ADVICE. PLEASE CONSULT LEGAL COUNSEL ABOUT YOUR SPECIFIC PRODUCTS.