Ohio Lawmakers Consider Sweeping Vape Regulations Despite Declining Youth Use

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Key Points:

• Legislative Overview: Ohio House Bill 849 would establish a comprehensive statewide regulatory framework for vapor and nicotine products, including a vapor product directory, expanded licensing requirements, and enhanced enforcement authority.

• Statewide Preemption Preserved: The bill reaffirms Ohio's statewide preemption law, preventing local governments from imposing tobacco and nicotine regulations or taxes beyond state law while allowing prevailing parties to recover attorney's fees and court costs.

• Expanded Product Definitions: HB 849 broadens statutory definitions to include disposable and open-system e-cigarettes, nicotine salts, synthetic nicotine, and nicotine analogues, significantly expanding the products subject to state oversight.

• State Vapor Directory: Manufacturers would have to certify that every vapor product sold in Ohio has received FDA marketing authorization, has a pending PMTA, or otherwise qualifies under federal law before being listed in a state directory.

• Licensing Expansion: The legislation creates new statewide licensing requirements for retailers, distributors, and wholesalers selling tobacco, vapor, and alternative nicotine products, with annual licensing fees and civil penalties for noncompliance.

• Contraband Authority: Products not listed in the state directory would become contraband, subject to seizure, forfeiture, and destruction, requiring retailers and distributors to remove products before compliance deadlines.

• Broad Enforcement Powers: Rather than establishing penalties in statute, HB 849 authorizes the Department of Public Safety to establish civil penalties through rulemaking, with each day of a violation treated as a separate offense.

• Federal Bottleneck: The legislation ties Ohio's marketplace to the FDA's PMTA process, which has authorized only 45 e-cigarette products despite millions of applications and more than 20 million adult e-cigarette users nationwide.

• Nearly 838,000 Adult Vapers: In 2024, an estimated 837,804 Ohio adults – 9 percent of the adult population – used e-cigarettes, representing an 8.4 percent increase from 2023 and a 57.9 percent increase since 2016.

• Youth Tobacco Use at Historic Lows: According to the 2024-25 Ohio Healthy Youth Environments Survey, only 2.9 percent of students had ever smoked a cigarette – the lowest level ever recorded.

• Youth Vaping Continues to Decline: Only 16 percent of Ohio students reported ever trying an e-cigarette, while current vaping fell to just 8.2 percent – an 85.6 percent decline from 2019-20.

• Retailer Compliance Data: FDA inspections in 2024 found that cigars accounted for 59.1 percent of Ohio's youth sales violations, compared to 17.1 percent involving e-cigarettes, suggesting vapor products are not the primary source of retailer violations.

• Adult Harm Reduction Trends: Between 2023 and 2024, Ohio gained approximately 71,155 adult e-cigarette users while approximately 72,950 fewer adults smoked combustible cigarettes, indicating continued movement toward smoke-free alternatives.

• Economic Implications: Smoking-related costs exceed $70,000 annually per smoker in Ohio, including more than $3,500 in healthcare costs, meaning continued declines in smoking could generate billions in long-term economic savings.

• Regulatory Concerns: By conditioning legal sales on a slow federal authorization process, HB 849 could significantly reduce adult access to lower-risk nicotine products despite continued declines in youth tobacco use.

• Policy Implications: Ohio's youth smoking and vaping rates continue to fall while adult use of smoke-free alternatives grows, suggesting policymakers can strengthen youth protections without unnecessarily restricting adult access to tobacco harm reduction products.

• Bottom Line: HB 849 expands state enforcement of the FDA's restrictive PMTA framework while youth tobacco use continues to reach record lows and adult smokers increasingly switch to lower-risk alternatives. Policymakers should pursue balanced regulations that combat illicit products and protect youth without unnecessarily limiting access for the nearly 838,000 Ohio adults who currently vape.

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Legislation introduced in the Buckeye State would severely restrict adult access to age-restricted consumer products used by nearly one million adults, many of whom are former smokers.

Although House Bill 849 declares that the "regulation of tobacco products and alternative nicotine products is a matter of general statewide concern that requires statewide regulation," the legislation would ultimately remove the vast majority of e-cigarette products currently used by an estimated 837,804 Ohio adults aged 18 years or older.

HB 849 reaffirms Ohio's existing statewide preemption law, prohibiting local governments from adopting tobacco and nicotine regulations or taxes that exceed state law. The legislation also allows prevailing parties challenging unlawful local ordinances to recover attorney's fees and court costs.

The bill further expands statutory definitions to encompass a broad range of products, including disposable and open-system e-cigarettes, synthetic nicotine, nicotine salts, and nicotine analogues. Notably, nicotine analogues are defined to include products "manufactured, formulated, sold, distributed, or marketed with the intent to avoid the provisions of this chapter."

The centerpiece of HB 849 is the creation of a statewide electronic smoking product directory. As of July 2026, 16 states have enacted similar directory laws. Under the proposal, manufacturers would have 60 days after enactment to certify products sold in Ohio by demonstrating that each product has either received a marketing granted order from the U.S. Food and Drug Administration (FDA), has a timely filed Premarket Tobacco Product Application (PMTA) that remains under FDA review, or is temporarily exempt from federal marketing authorization requirements.

Manufacturers would also be required to submit product names, brand names, individual flavors, supporting FDA documentation, and annual filing fees. The Ohio Department of Public Safety would publish and maintain the directory, updating it at least monthly.

The legislation would also establish a new statewide retail licensing system covering retailers of tobacco products, alternative nicotine products, electronic smoking products, and vapor products. Retail licenses would cost $125 per location annually, with penalties of up to $1,000 for operating without a license. Distributor licensing would likewise be expanded, requiring annual fees of $1,000 for tobacco distributors and $125 for vapor-only distributors.

Products not included on the directory would become "contraband" after the applicable compliance period, allowing the Department of Public Safety to seize, forfeit, and destroy them. Retailers and distributors would be responsible for removing non-listed products from inventory before they become contraband.

Rather than establishing statutory penalties, HB 849 delegates authority to the Department of Public Safety to determine civil penalties through rulemaking. Retailers, distributors, wholesale dealers, and manufacturers could all face civil penalties for selling or distributing products not listed in the directory, with each day a violation continues constituting a separate offense.

While HB 849 is likely intended to curb illicit products and improve regulatory oversight, it would also substantially reduce adult access to lower-risk nicotine products while relying on an exceptionally slow and burdensome federal regulatory process.

To date, the FDA has authorized only 45 e-cigarette products, the overwhelming majority of which are tobacco-flavored, despite the preferences of more than 20 million adult consumers nationwide who use a wide variety of smoke-free alternatives.

In Ohio, annual data from the Centers for Disease Control and Prevention's Behavioral Risk Factor Surveillance System (BRFSS) indicate that 9 percent of adults aged 18 years or older – or approximately 837,804 individuals – currently used e-cigarettes in 2024. This represents an 8.4 percent increase from 2023 and a remarkable 57.9 percent increase since 2016, when only 5.7 percent of Ohio adults reported vaping.

Meanwhile, youth tobacco and nicotine use continues to decline.

According to the 2024-25 Ohio Healthy Youth Environments Survey (OHYES!), only 2.9 percent of Ohio students had ever tried a combustible cigarette – the lowest level ever recorded. Likewise, only 16 percent reported ever trying an e-cigarette, representing the lowest level recorded by the survey and a 27.9 percent decline from 2019-20.

Current use has also declined substantially. In 2024-25, only 8.2 percent of Ohio students reported using an e-cigarette during the previous 30 days, representing an 85.6 percent decline from the 2019-20 survey, when 57 percent of students reported current use.

Simply put, HB 849 would restrict adult access to tobacco harm reduction products despite continued real-world declines in youth tobacco and nicotine use.

The legislation would also impose significant burdens on responsible retailers, many of whom are small business owners.

The FDA routinely conducts compliance inspections using underage purchasers. In 2024, the agency conducted 1,799 inspections of Ohio tobacco and vape retailers, identifying 345 violations involving underage sales.

Of those violations, 204 involved cigars (59.1 percent), followed by 74 cigarette sales (21.4 percent), 59 e-cigarette sales (17.1 percent), and four violations each involving oral nicotine products and smokeless tobacco (1.2 percent each).

These data suggest that specialty vape retailers are generally performing better than many traditional tobacco retailers in preventing youth access, yet HB 849 imposes additional restrictions primarily affecting the vapor marketplace rather than addressing the products most frequently involved in youth access violations.

Perhaps most troubling, the legislation expands state enforcement of a federal regulatory system that has authorized only a small fraction of the products currently used by adults, despite both the FDA and CDC recognizing that smoke-free nicotine products generally present significantly lower risks than combustible cigarettes.

Between 2023 and 2024, adult vaping in Ohio increased from 8.3 percent to 9.0 percent, while adult smoking declined from 15.0 percent to 14.1 percent. That equates to approximately 72,950 fewer adult smokers alongside 71,155 additional adult vapers.

These trends carry important public health implications. According to WalletHub, the average annual societal cost of smoking exceeds $70,000 per smoker in Ohio in 2024, including more than $3,500 in direct health care costs. If continued transitions away from combustible cigarettes persist, reductions in smoking prevalence could translate into billions of dollars in avoided economic costs and hundreds of millions in reduced health care expenditures over time.

Rather than building on Ohio's continued progress in reducing cigarette smoking and youth tobacco use, HB 849 doubles down on a federal regulatory framework that has authorized only a handful of vapor products despite growing adult demand for smoke-free alternatives. A regulatory system that recognizes the continuum of risk is more likely to improve public health than one that limits access to products many adults rely on to remain smoke-free.

Nothing in this analysis is intended to influence the passage of legislation, and it does not necessarily represent the views of Tobacco Harm Reduction 101.