During the 2019 legislative session, Texas passed a tough new law prohibiting the sale of vaping products to anyone under 21 and required stores to check the ID of all buyers under the age of 30. But when NBC 5 Investigates sent a young staff member into DFW-area vape shops wearing a hidden camera, we found some still sell without verifying age.
Perhaps more concerning, our investigation found state inspectors do not conduct undercover checks at many vape stores because of a loophole in Texas law.
Once billed as a safer alternative to regular smoking, vaping is now being blamed for teenagers falling ill across the country – with some dying.
In Texas, health records show the great majority of those lung illnesses were in North Texas.
Anna Carey feared she might die when she was hospitalized last fall. Videos her family took in the hospital show the 16-year-old fighting to breathe, her lungs failing with pneumonia settling in.
The effects of her habitual vaping had zapped the energy from the normally active teen.
“I couldn’t even sing songs in the car,” said Carey, who is now 17.
The state of Texas attempted to curb the teenage vaping crisis last year by raising the age from 18 to 21 before a person can legally buy a vape product. Texas also requires merchants to card a potential vape customer, even if that person looks as if he or she could be as old as 30.
That’s far older than our 22-year-old staff member who went to convenience stores, tobacco shops and vape-only stores across the Metroplex to see if she would be carded before purchasing a vape pod.
The staffer, armed with a hidden camera, was legally old enough to buy vaping products, but too young to buy anything before first being asked to show her ID to prove she was of legal age.
Most store clerks followed the law, but clerks in four stores didn’t and allowed our young employee to purchase a vaping product without first proving her age.
“It’s devastating to me,” said Stephanie May, when told her store in Allen, Chasing Vapes, was one of the shops that failed to ask for our employee’s driver’s license even though a sign at the cash register warned, “I Check ID."
May said she had a family emergency and left a friend in charge of the store who simply thought, without making sure, that our staffer looked old enough to buy a vaping product.
When we showed May the video of from our hidden camera, she said she was furious with what she saw, and promised she would assure it never happens again.
May said she would actually welcome future undercover inspections by the state – checks that are not currently required at shops like hers, our investigation found.
“I am a huge advocate for regulation and strict enforcement,” May said.
NBC 5 Investigates has learned that stores like Chasing Vapes are not checked by state inspectors because of a massive loophole.
The Texas Comptroller’s office only sends undercover buyers into stores that have tobacco permits, which are required before a business can sell conventional tobacco products such as cigarettes.
But if a shop only deals in vaping, like Chasing Vapes, they don’t need a tobacco permit, only a sales tax permit.
“Because of this, we are unable to identify retailers who only sell e-cigarettes” and, therefore, are not subject to, “compliance inspections,” said Kevin Lyons, agency spokesman for the Texas Comptroller.
Sen. Beverly Powell, a Burleson Democrat who sits on Texas' powerful Health & Human Services Committee, is among the state lawmakers who want to close that loophole. Federal inspectors with the FDA and local police may occasionally visit some stores the state does not check. But Powell believes Texas needs a system to ensure state oversight of all shops.
“We’ve got work to do here, and we owe it to our families, we owe it to the young people, to not allow another generation to be addicted to products like this,” Powell said in an interview with NBC 5 Investigates.
Powell said she will push for new legislation to increase oversight of vape sales, starting with the requirement that all stores get permits.
She added, “There’s no question that we need to allocate more resources to this problem.”
Anna Carey agreed. She said stricter enforcement could help clamp down on the shops that are popular with minors who know they won’t be carded.
“Like, even if there’s ways to get around it, at least it’s, like, another step into getting rid of this epidemic,” she said.
Our hidden-camera shopping spree found that some stores still fail to check IDs, even though they hold tobacco permits and are subject to state inspections. At the C-Store convenience store, at 3000 N. Belt Line Road in Irving, our young staffer made a buy without first showing identification.
FDA records show the store received a stern letter from the federal Food and Drug Administration last May, threatening a $500 fine after FDA inspectors said a “person younger than 18 was able to purchase” vaping products during two undercover inspections.
The business owner, in a telephone interview, told NBC 5 Investigates he resolved the FDA complaint by taking a training class, and that his store passed a more recent inspection.
The owner also said the clerk who failed to card our staffer was new.
“I will be more careful next time,” the owner said.
We discovered, 7-Eleven, one of the nation’s largest convenience store chains, has implemented more stringent controls to prevent clerks from selling without asking for an ID.
In a statement, the Irving-based company said it began in November a “100 percent customer ID scan policy for all vaping products in the U.S.”
The company said its policy makes it, “nearly impossible for underage customers to purchase vaping products,” and that 7-Eleven “believes all retailers should be required to implement ID scan technology for vaping products.”
NBC 5 Investigates visited several 7-Elevens and clerks not only checked our ID each time – they scanned it in accordance with the company’s policy.
At the small Chasing Vapes shop in Allen, owner Stephanie May said she’s also going beyond what the state requires now by using a “We Card” app to scan driver’s licenses. She wants to make sure there’s not a repeat of what happened when NBC 5 Investigates first visited with a hidden camera.
“Absolutely not. You will see me ID 60-year-olds from now on,” May said, promising: “This will not happen again in my shop.”