A bill banning flavored e-cigarettes and other tobacco products failed to make it past key Democratic state senators Tuesday.
Members of the Senate appropriations committee voted down the bipartisan proposal, HB22-1064, on a 5-2 vote, according to Colorado Public Radio. Three Republicans were joined by Democratic state Sens. Robert Rodriguez and Rachel Zenzinger in voting no.
The bill had been heavily lobbied and one of the session’s most high-profile and closely watched bills. But Gov. Jared Polis said he opposed it and said the issue should be handled at the local level.
Rep. Kyle Mullica, a Democrat from Northglenn, said he hoped the measure would help prevent young people from getting hooked on flavored vaping products.
“We’ve already seen a whole generation become addicted and (the bill) was going to do something about that and was going to make sure that we took a stand here in Colorado and that we put the health of our kids first,” said Mullica, one of four sponsors. “It’s a little disappointing not seeing it get passed.”
Senate President Steve Fenberg signaled the demise of the bill with reporters earlier in the day. The Senate’s top Democrat said he didn’t think there was time left in the calendar given everything else lawmakers had to finish.
On Monday, the bill was still alive and moving through the Senate. The finance committee advanced it on a 4-1 vote.
Another California city is considering a flavor ban for vaping products. The Orinda City Council introduced and unanimously passed the first reading of an ordinance during its meeting last week, that would ban the sale of all flavored vaping and other tobacco products within the city beginning in just a few weeks.
The ban would prohibit the sale or any other former of distribution of flavored tobacco products, which would include products with menthol, to Patrick Lagreid of Halfwheel. There are no exemptions for premium cigars or other products.
The ordinance will return for a second vote on May 17; if approved it will go into effect 30 days later, though there will be a 120 day grace period before enforcement begins.
For the third year in a row, an effort to ban flavored vaping products in Connecticut couldn’t muster enough support.
“We’re incredibly frustrated that the legislature can’t seem to get their priorities in order in a way that would protect kids, the way all of Connecticut’s neighbors already have,” said Kevin O’Flaherty, northeast advocacy director for the Campaign for Tobacco Free Kids. They “continue to support industry and industry profits instead of protecting kids.”
The flavor ban had early momentum in the General Assembly. The Public Health Committee approved the measure in March after hearing hours of testimony, according to CT Mirror.
Connecticut is one of few states in the region that has not adopted a prohibition on flavored e-cigarettes. New York, New Jersey and Rhode Island have barred the sale of flavored vaping products. Massachusetts banned all flavored tobacco items, including flavored cigars, cigarettes and vaping goods.
The state has attempted a ban twice before. The proposal was raised in 2020 as part of Gov. Ned Lamont’s budget but was unsuccessful. Lamont had recommended banning flavored vaping products and increasing the tax on all e-cigarette liquids.
Last year, a bill barring the sale of flavored cigarettes, tobacco products and e-cigarettes was watered down and then shelved. A version of the plan was also added to the state budget implementer but was scrapped.
This year’s version only targeted the sale of flavored vaping products (not flavored cigarettes or cigars). But it still ran into opposition. E-cigarette makers, store owners and people who say that vaping is an important alternative for those who are quitting smoking testified against the bill.
After months of debates and amending, Colorado’s House passed a ban on flavored vaping and other tobacco products this week. The bill passed 35-27 on Wednesday after the appropriations committee approved it earlier in the day on a 7-4 vote.
That ban will not apply to the sale of premium cigars after they were given an exemption during the debate process, as was pipe tobacco and hookah products.
The bill now goes to the state Senate. Even with the session end looming, one of its co-sponsors, state Sen. Rhonda Fields said she was optimistic, according to Colorado Public Radio.
“You know, it looks great. It’s on its way to the Senate, and then we’ll make sure it goes through all the appropriate committees and I’m looking forward to debating it,” said Fields.
Opponents say a ban would hurt convenience stores and vape shops and have argued the issue is one of personal choice.
For Fields, she said it’s about the toll tobacco consumption, driven by attractive flavors like menthol, has taken on the community.
“It started back in the ’60s, (the brand) Kool Cigarettes, all these menthol flavors,” she said. “The industry has now put flavors into vaping, into cigarettes to make it more attractive for young people to start smoking early.”
The measure, HB22-1064, bans retailers of cigarettes, tobacco or nicotine products from selling or marketing any flavored product. Those are defined as products “imparting a taste or smell other than the taste or smell of tobacco.”
The ban on menthol cigarettes is closer to becoming a reality. After years of discussion, the U.S. Food and Drug Administration has instituted a proposed rule to place a ban on menthol combustible cigarettes and flavored cigars. Whether the menthol ban will also cover next-generation tobacco products, such as e-cigarettes, has not yet been clarified.
“The authority to adopt tobacco product standards is one of the most powerful tools Congress gave the FDA and the actions we are proposing can help significantly reduce youth initiation and increase the chances that current smokers quit. It is clear that these efforts will help save lives,” said FDA Commissioner Robert M. Califf, M.D. “Through the rulemaking process, there’s an important opportunity for the public to make their voices heard and help shape the FDA’s ongoing efforts to improve public health.”
When finalized, the FDA states that the proposed menthol product standard will:
reduce the appeal of cigarettes, particularly to youth and young adults, decreasing the likelihood that nonusers who would otherwise experiment with menthol cigarettes would progress to regular smoking; and
improve the health and reduce the mortality risk of current menthol cigarette smokers by decreasing cigarette consumption and increasing the likelihood of cessation.
The FDA states that the proposed product standards are based on clear science and evidence establishing the addictiveness and harm of the products. Many organizations were quick to condemn the regulatory agency for proposing the rule that is opposed by all major law enforcement, civil rights and criminal justice reform organizations. Opponents of the menthol ban say that evidence clearly shows that banning menthol products will do nothing to reduce combustible cigarette smoking rates but will lead to an increase in people purchasing products on the black market.
Credit: FDA
“This misguided proposal will have disastrous impacts on public health and public safety. It will do nothing to reduce smoking rates and instead make the United States less safe.” said Tim Andrews, director of Consumer Issues for Americans for Tax Reform (ATR). “It is unfortunate that as violent crime rates rise across the country, the FDA chooses to divert valuable police resources to pursue an unnecessary ban on menthol products.”
Andrews argues that a menthol ban exposes “vulnerable members of minority communities to conflict with law enforcement, and their purchases could also fund sophisticated international criminal syndicates.” According to the U.S. Department of State, illicit tobacco’s links to funding terrorist organizations already present a “serious threat” to national security. “This policy would worsen the problem while also depriving state governments of excise revenue, putting state government programs at risk,” says Andrews.
Richard Marianos, a senior law enforcement consultant who has served more than 27 years at the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and who is now a consultant and adjunct lecturer at Georgetown University, says that in many foreign markets, such as Asia, companies are creating products to make mentholated cigarettes, because those types of products are not covered by the rule.
“They are flavor packets you just slide into a pack of cigarettes. You buy your cigarettes, you put that in there and by the time you get home, the whole pack is mentholated. They also have these – it’s like a little Tic Tac box with a round, small, little mint … but what it does is you put it into the filter, shake, crush and now it’s a menthol cigarette,” said Marianos. “Are we eventually going to be asking border protection to now start looking for minty flavor packets or Tic Tac boxes when they have to concentrate on biological and nuclear threats? When you overlook public safety surrounding this matter, you’re creating an unhealthy situation, not just for smokers, but anybody who’s out there.”
Marianos says that a menthol ban will create a greater level of diversion and criminal activity with high-value targets overseas, it’ll bring more organized crime into the United States. It’ll also create a greater market for border countries to begin manufacturing menthol and bring it into the United States.
“There was one investigation in particular, I remember, where the individual said on a wire that once they banned menthol cigarettes in the United States, you can pave the roads in gold because of the boost in sales of black market and DIY menthol cigarettes,” he said. “Prohibition doesn’t work. Your quality of police work goes down; they can’t concentrate on violent crime as much and it creates a greater wedge between themselves and the community.”
Guy Bentley
Guy Bentley, director of Consumer Freedom Research for the Reason Foundation, said that similar bans have had minimal effects on tobacco consumption in other countries such as Canada and the U.K., adding that a menthol ban is likely to lead to more policing in minority communities, more incarceration, boost black market sales and undermine criminal justice reforms in the U.S.
In an email to Vapor Voice, Bentley explained that a recent study funded by the Norwegian Cancer Society in partnership with the Polish Health Ministry found that in Poland – the EU state with the largest pre-ban menthol share – found “mixed evidence” that the ban is working as intended.
Bentley argues the FDA and Biden administration should apply a harm reduction model, educating the public about safer alternatives to conventional cigarettes and the latest smoking cessation options. Andrews concurs with Bentley, adding that the proposed rulemaking will inevitably lead to further growth of illicit markets, put members of minority communities in danger and divert law enforcement resources away from real crime.
“It ignores best practice expert recommendations on how to reduce smoking rates through proven harm reduction technologies, is a disaster for public health, and will make all Americans less safe,” Andrews said. “If the Biden Administration truly cared about the American people, they would junk this anti-science and genuinely harmful proposal immediately.”
Beginning May 4, 2022, the public can provide comments on these proposed rules, which the FDA will review as it considers future action. The agency also will convene public listening sessions on June 13 and June 15 to expand direct engagement with the public, including affected communities.
The public will have the opportunity to submit either electronic or written comments directly to the dockets on the proposed rules through July 5, 2022. Once all the comments have been reviewed and considered, the FDA will decide whether to issue final product standards.
The FDA also states that it cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars. If the proposed rules are finalized and implemented, FDA enforcement will only address manufacturers, distributors, wholesalers, importers and retailers who violate the rules.
The Bangor City Council plans to repeal an ordinance that would have implemented a ban on flavored tobacco sales in the city.
Bangor initially approved the ban back in October. It was set to go into effect June 1, but during a meeting on Monday, city officials said they did not give businesses enough warning about the new law.
City officials were required to give businesses at least 30-days’ notice, which they reported did not happen, according to News Center Maine. Because of that, officials said the ban would be difficult to enforce and could even open the city up to possible lawsuits. The city council was not sure why the notice never happened.
Councilors can still pass a new ordinance in the future. Bangor was the first community in Maine to approve a ban on flavored tobacco. Portland and Brunswick also have bans that are set to start June 1.
A proposal for a statewide ban on flavored tobacco is still working its way through the Maine Legislature.
The attitude and actions of the next director-general of health will be key to New Zealand achieving its smokefree ambitions, says the Coalition of Asia Pacific Tobacco Harm Reduction Advocates (CAPHRA).
“This person could make or break Smokefree 2025. He or she advises the government, oversees regulation, and has the final say on new vape store licences. It’s an incredibly important position when it comes to New Zealand effectively addressing tobacco,” says Nancy Loucas, executive coordinator of the Coalition of Asia Pacific Tobacco Harm Advocates (CAPHRA).
Current Director-General of Health Ashley Bloomfield will leave the job in July, with his successor yet to be appointed.
Loucas says that while New Zealand’s Smokefree Environments and Regulated Products (Vaping) Amendment Act 2020 is viewed internationally as relatively progressive, there are some provisions that the next director-general should review.
“The act claims to strike a balance between ensuring vaping products are available to adult smokers while protecting young people. Sanctioning it as an R18 product has helped achieve that. However, banning the most popular flavours from general retail is only stopping adult smokers from quitting deadly tobacco,” she says.
Since August 11, 2021, general retailers such as supermarkets, service stations and convenience stores have been limited to just selling three flavors–mint, menthol and tobacco. Only licenced specialist vape stores can sell a full range of more popular flavours.
“The next Director-General of Health must review this restriction on general retail. By the time he or she takes office, the flavor ban would have run a year and many of us strongly believe it’s hindering not helping New Zealand achieve Smokefree 2025.
“Adult smokers desperate to quit can go to a supermarket and choose any brand of cigarette under the sun, yet they can only choose from three vape flavors. That’s not enabling them to make the best decision for their health nor is it helping New Zealand reduce its smoking rate,” says Loucas.
This person could make or break Smokefree 2025. He or she advises the government, oversees regulation, and has the final say on new vape store licences. It’s an incredibly important position when it comes to New Zealand effectively addressing tobacco.
With youth smoking at a historic low and 9.4 percent of adults now daily smoking, New Zealand’s goal of Smokefree 2025—where 5 percent or less of the general population smoke—is looking increasingly likely to be achieved.
CAPHRA says overall Bloomfield has been a supporter of New Zealand’s Tobacco Harm Reduction public health strategy. This has included approving and promoting messages on the ministry of health’s Vaping Facts website, which headlines “vaping is less harmful than smoking”—an approach that has been heavily supported across New Zealand’s health sector.
At the time, CAPHRA and other THR advocates raised concerns that vaping—a 95 percent less harmful alternative and New Zealand’s most effective smoking cessation tool—is largely absent from the government’s reinvigorated approach to stamping out smoking.
“The smokefree action plan makes tobacco less available and less appealing. It fails, however, to fully acknowledge the positive role vaping has played, and will play, in getting Kiwis off the cancer sticks. That’s a worry because we won’t get there without safer nicotine products,” she says.
CAPHRA says top of mind for the next director-general of health is that fact that over 5,000 Kiwis continue to die from smoking-related illnesses every year, and the job to reduce that is by no means done.
“The next director-general of health will need to keep a close eye on whether the government’s vaping regulations and Smokefree Aotearoa 2025 Action Plan are in fact delivering on their promise. With so many lives at stake, he or she will have no time to waste,” says Nancy Loucas.
A Connecticut legislative panel on public health pushed forward Wednesday with a plan to ban the sale of flavored vaping products in an effort to reduce nicotine use by minors.
According to CT News Junkie, lawmakers have debated for the last two years without passing a proposal that would prohibit the sale of any vaping flavor other than tobacco and increase penalties for businesses caught selling nicotine products to youths.
Wednesday’s 19 to 12 vote found members of the committee split on the issue. Several lawmakers voiced concern that banning flavored vaping products could have the unintended consequence of leading nicotine consumers to more harmful combustible products like cigarettes.
Rep. Jamie Foster pointed to testimony from Yale professor Dr. Abigail Friedman suggesting the policy could increase tobacco use by minors and reduce smoking cessation by adults.
“It would be easier and significantly more comfortable to me to align with the advocates who want children to not have access to tobacco,” Foster said. “It would be easier if we could just say ‘E-cigarettes are evil’ and ban them. I wish we could. I wish the science supported that but it doesn’t.”
A Los Angeles ban on sales of flavored vaping and other tobacco products is valid because federal law allows it, the Ninth Circuit ruled last week in a case brought by R.J. Reynolds Tobacco Co. and related companies.
The Family Smoking Prevention and Tobacco Control Act “carefully balances federal and local power by carving out the federal government’s sole authority to establish the standards for tobacco products,” Judge Lawrence VanDyke said for the U.S. Court of Appeals for the Ninth Circuit, according to news Bloomberg Law.
The carve-out preserves “state, local, and tribal authority to regulate or ban altogether sales of some or all tobacco products.”
Judge Ryan D. Nelson dissented, saying the ban is expressly preempted. The case is among several Reynolds and other companies have litigated over local efforts to restrict flavored tobacco products.
An appeal over a provision in Edina, Minn., was argued to the U.S. Court of Appeals for the Eighth Circuit in May. And Philadelphia agreed to tear up its ban after federal trial and appeals courts questioned the measure’s validity under a preemption provision specific to Pennsylvania.
Reynolds has argued that under the TCA, state and local governments retain the power to set age, location, and storage requirements for tobacco product sales.
“But one thing states and localities cannot do is prohibit the sale of tobacco products because those jurisdictions disagree with federal tobacco product standards,” Reynolds told the Ninth Circuit in March in the Los Angeles case.
The lower court said the Los Angeles County ordinance doesn’t regulate tobacco product standards. The Ninth Circuit agreed. Reading the term “standards” in the TCA’s preemption clause too broadly would run into textual problems, VanDyke said.
But even if the ban fell within the preemption clause, it would meet an exception under a following provision, the “savings” clause, he said.
“In short, the TCA’s text sandwiches limited production and marketing categories of preemption between clauses broadly preserving and saving local authority, including any ‘requirements relating to the sale’ of tobacco products,” VanDyke said. “This unique ‘preservation sandwich’ enveloping the TCA’s preemption clause reveals a careful balance of power between federal authority and state, local, and tribal authority.”
Vapers in China have reportedly been stocking up on flavored liquids in anticipation of a ban. A staff member at a RELX store in Shanghai told Sixth Tone that his shop had seen an increased demand for flavored pods since the government announcement, with grape and cola-flavored varieties selling out almost instantly.
On March 11, the State Tobacco Monopoly Administration published the final “Management Rules for E-cigarettes,” which includes a ban on domestic sales of nontobacco-flavored e-cigarettes. The rules are scheduled to take effect May 1.
The move was welcomed by anti-vaping groups such as the Campaign for Tobacco-Free Kids, which said the rule would help prevent children from becoming smokers. “Children who use e-cigarettes are more than twice as likely to use cigarettes in the future, according to the World Health Organization,” said Yolonda Richardson, executive vice president for the Campaign for Tobacco-Free Kids, in a statement. “China’s new policy is the right move to protect Chinese kids from these addictive products.”
The flavor ban is part of a long list of new requirements for the vaping business. China’s new rules also ban refillable products and synthetic nicotine while limiting the strength of e-liquid to 20 mg/mL.
Manufacturers, wholesalers and Chinese retailers will be required to conduct all business on a “unified national electronic cigarette transaction management platform,” and exports will be restricted to vapor products allowed in the destination countries.
The new rules will force e-cigarette sellers like RELX to sell competitors’ brands in their Chinese stores—something they don’t do currently.
With more than 300 smokers, China remains the world’s largest cigarette market, representing considerable potential for vapor companies. The country’s domestic e-cigarette market has grown at a rate of 70 percent a year since 2013, according to the Global Times, and is valued at about $1.3 billion.
China exports $15.6 billion of vaping products annually, according to the Shanghai Daily.
