The Consumer Choice Center has released its second U.S. State Vaping Index, which looks at 50 states plus the District of Columbia. It reveals that only three states, including Alaska, North Dakota and Tennessee, received an A+ in the study for an evidence-based approach to vaping policy.
This rating means these states are in a position to harness the enormous potential of vaping as a harm-reduction tool while still letting consumers choose for themselves. Other states that perform well are Arizona, Michigan, Mississippi, Missouri, Montana, Texas, Alabama, Arkansas, Oklahoma and Wisconsin.
By contrast, 12 states have overwhelmingly embraced restrictive policies on vapers and vaping, including Utah (0 points), California (second to last at 5 points), Vermont (10 points), Oregon, New York, New Jersey, Nebraska, Massachusetts, Illinois, Hawaii, D.C. and Colorado (all at 15 points). The number of low scores has doubled since the 2020 edition of the Vaping Index.
“Vaping saves lives,” said Emil Panzaru, research director for the Consumer Choice Center. “If every smoker in the United States switched to vaping over 10 years, you’d have 6.6 million fewer premature deaths in the U.S.
“Unfortunately, policymakers across America do not recognize that vaping is a valid harm-reduction substitute for traditional combustible tobacco products. Vapes are often mistakenly referred to as tobacco products, and in turn, targeted with draconian flavor bans, taxed higher than cigarettes, subject to registries meant to gatekeep the products, and faced with bans on online sales.
“These policies deter consumers from switching away from the more dangerous habit of smoking and fuel black markets for vape products. The end result is a patchwork of state laws at odds with the most up-to-date public health practices from around the world.”
The purpose of the U.S. Vaping Index is to inform consumers about vaping policies in their area and highlight the need for more informed and level-headed lawmaking. The Consumer Choice Center weighed five factors in the index:
1) Whether the state considers vapes to be tobacco products;
2) State-level vaping flavor restrictions;
3) Requirements for state registries (which mirror the FDA-approved database);
4) Additional excise taxes on vaping; and
5) The presence or absence of online sales bans.
“Let’s set the empirical record straight,” said Panzaru. “The best available research by authorities such as Public Health England recognizes that vaping is 95 percent safer than combustible tobacco for users. Evidence in the New England Journal of Medicine finds that vaping is twice as effective at smoking cessation than any nicotine tablet, patch or spray at helping people quit smoking.
“What’s more, a review of 15 different studies found little evidence of a supposed gateway effect leading teens down the path from vaping to smoking or hard substances.”
“Rather than embracing policies that ignore the evidence and do not work, state authorities should commit to studying and learning from the example of Sweden, the first country to become smoke-free in Europe thanks to the research-driven recognition of vapes as harm-reduction tools,” Panzaru concluded.
Consumer advocates were planning to speak out against what they describe as the U.S. Food and Drug Administration’s “alarming neglect” in facilitating access to safer nicotine alternatives for millions of adult consumers during a House Oversight hearing scheduled for 1 pm today.
“Despite the bipartisan mandate of the Tobacco Control Act of 2009, the FDA’s performance has fallen short of expectations, leaving countless individuals without viable options to effectively transition away from combustible cigarettes,” the Consumer Choice Center wrote in a press note.
“With over 26 million premarket tobacco product applications (PMTA) languishing in bureaucratic limbo, the FDA has only authorized fewer than 50 granted to just a handful of firms, completely disregarding the 180-day review deadline set imposed by Congress,” said Consumer Choice Center US Policy Analyst Elizabeth Hicks.
“Less than 10 unique devices are available on the regulated marketplace, all of which come from industry incumbents, not to mention the growing categories of nicotine alternatives such as heaters, pouches, toothpicks, and more.
“This blatant failure highlights a systemic issue within the agency, where regulatory inertia trumps the urgent need to provide consumers with safer nicotine alternatives such as e-cigarettes which studies have shown to be 95 percent less harmful than combustible cigarettes. As a result, consumers are being pushed towards the illicit market, which does not adhere to regulatory standards, to find their preferred nicotine alternative products,” said Hicks.
“Consumers are deeply troubled by the FDA’s abject failure to fulfill its obligations under the Tobacco Control Act. It is imperative that the FDA swiftly rectify this situation by implementing a transparent and expedited regulatory pathway that prioritizes access to scientifically validated, less harmful nicotine products,” she concluded.
U.S. states must recognize the unintended consequences of passing laws requiring premarket tobacco product application (PMTA) registries for alternative nicotine products such as vaping devices, heaters, and nicotine pouches, according to the Consumer Choice Center, an organization claiming to represent consumers in more than 100 countries.
In the first months of 2024, more than a dozen bills have been introduced in U.S. states calling for a state-based registry for alternative nicotine products. Such legislation has already been passed in Oklahoma, Louisiana and Alabama.
“While the intention behind these bills is to manage consumer access to unregulated nicotine products on the illicit market, the reality is that the FDA is not approving enough new devices and products to create a competitive, regulated marketplace that meets consumer demand,” said Elizabeth Hicks, U.S. affairs analyst at the Consumer Choice Center.
While 26 million nicotine alternative products submitted PMTAs to the Food and Drug Administration, only 23 have been approved. Of those 23 approved products, 12 are tobacco-flavored e-liquid refills.
“The FDA is hiding the ball here on product approvals and how few new products are actually coming to market. If the goal is to improve public health across the country, then consumers deserve to choose from a variety of different nicotine alternatives,” said Hicks.
The Consumer Choice Centers urges state legislatures to refrain from adding to counterproductive federal policies and instead advance tobacco harm reduction through a competitive marketplace.
Illinois now has a law that bans the use of electronic cigarettes in indoor public spaces, but a consumer advocacy group warns such laws could backfire.
Gov. J.B. Pritzker recently signed into law a measure that adds electronic smoking devices to the 2008 Smoke-Free Illinois Act, which banned smoking in most public spaces in the state.
Elizabeth Hicks with the Consumer Choice Center says vaping should not be compared with smoking regular cigarettes, according to media reports.
Hicks says the assault on vaping may push Illinoisans back to cigarettes, leaving taxpayers to pick up the tab.
“Taxpayers unfortunately also suffer in addition to consumers,” said Hicks. “The annual Medicaid costs for smoking-related illnesses in Illinois is over $2 billion, which is one of the highest throughout the country.”
The Illinois Department of Public Health noted that e-cigarettes can cause lung damage and addiction to nicotine. The law goes into effect January 2024.
Update: At 2:56 pm the House went into recess, to presumably make amendments to the bill. Media outlets have reported it is to remove some Covid-19 related measures (30 states at risk of losing Covid relief funding previously promised). Currently, the vote on the omnibus appropriations bill is expected to occur this evening or late tonight.
It is possible that the omnibus appropriations bill vote is delayed. In case Congress does not complete work on the omnibus by the end of the week, the House is also expected to vote on a CR through March 15 today to allow time for Senate passage and signing by the President.
If the synthetic nicotine language remains in the bill, the rule will become law 30 days after the bill’s passage date. Manufacturers of currently marketed synthetic products would have an additional 60 days to file a premarket tobacco product application (PMTA) without being subject to FDA enforcement—unless the FDA has already denied a non-synthetic version of the same product (meaning those manufacturers would be subject to enforcement 30 days after the passage of the bill).
The U.S. House of Representatives is expected today to vote on an omnibus appropriations bill (page 1,870) that includes language that would give the U.S. Food and Drug Administration the power to regulate synthetic nicotine . Lawmakers have said some add-ons have already been agreed to, such as a package of health care provisions including Medicare program extensions and eliminating the synthetic nicotine loophole.
The House is planning to vote sometime today before going to Philadelphia for its annual issues conference. The bill must clear the Senate before stopgap funding expires at midnight Friday. GOP objections to a unanimous consent agreement to speed consideration in the Senate could delay final passage into the weekend, lawmakers warned, but both sides expect the process to be complete in time to avoid a partial government shutdown when federal agencies open Monday.
House Appropriations Chair Rosa DeLauro was adamant after a private House Democratic Caucus meeting Tuesday morning the omnibus would be ready for the House to pass on Wednesday, according to RollCall.
“It’s not going to get delayed. We’re going to vote tomorrow,” she said.
If the spending bill currently under consideration passes, the language of the Tobacco Control Act would change to define a tobacco product as “any product made or derived from tobacco, or containing nicotinefrom any source, that is intended for human consumption.”
Amanda Wheeler, president of American Vapor Manufacturers association, said the of banning synthetic products is going to drive millions back to combustible cigarettes.
“At a time when FDA is under scrutiny from multiple federal courts for unlawful regulatory overreach on nicotine, handing the agency even more powers to prevent Americans from switching to vaping is like handing car keys and a bottle opener to your drunk uncle,” she said. “It’s already lunatic that FDA is prohibiting adult American smokers from switching to vaping but this legislation is so absurd that it will extend FDA’s reach to products that have no actual, physical connection to tobacco whatsoever. This bill ought to be called the Cigarette Protection Act, because the indisputable outcome will be countless more Americans pushed away from nicotine vaping and back into combustible smoking.”
Amanda Wheeler
Yaël Ossowski, deputy director of the Consumer Choice Center, said the legislation will actively harm adults who want to quit smoking. He says that the method of “fattening up continuing resolution bills with laws that benefit special interests, without broader democratic debate or analysis of the costs and benefits,” is shameful in a modern American Republic.
“The byzantine process of asking permission to sell harm reducing vaping products in the 21st century is asinine in itself. But using sleight of hand during an emergency government funding bill to castigate millions of vapers and the entrepreneurs who make and sell the products they rely on is the definition of active harm,” said Ossowski. “Only the largest and most powerful vaping and tobacco companies can afford the lawyers and the time necessary to complete the paperwork necessary to pass the FDA’s process, meaning thousands of hard-working American business owners will now be forced to close, depriving millions of adult consumers of harm reducing options. Many will be forced back to cigarettes.
“Synthetic nicotine is an innovative method of providing nicotine independent of tobacco, and millions of American adults now use these products as a less harmful method of consuming nicotine. A back door bureaucratic power move like this represents a sledgehammer to the men and women of our country who have sought out vaping devices to kick their cigarette habit.”
Yaël Ossowski
Ossowski said he hopes elected representatives reject the synthetic nicotine inclusion and “go back to the drawing board” to offer a more permanent policy.
Congress has tried numerous times over the past year to give the FDA authority over synthetic products. The FDA said last year that synthetic nicotine could be considered a component of e-cigarettes, which would allow for the product to be regulated by the agency. Many states have already begun banning synthetic products.
Sens. Richard Burr, Dick Durbin and Patty Murray, along with Rep. Frank Pallone led the effort to get the language into the omnibus, according to two Senate sources familiar with the discussions. “This is an enormous win for public health and American consumers,” Pallone said in a statement. “I’m grateful to members on both sides of the aisle for working with me to close this loophole in the omnibus.”
A new research paper attempts to clarify the confusion surrounding nicotine consumption and the role it plays in the diseases caused by smoking. The paper, released by the Consumer Choice Center, outlines six main reasons why the “war on nicotine is pointless” and should end.
Credit: kues1
“Instead of celebrating declining numbers of smokers and far fewer deaths, many governments, public health agencies and anti-smoking activists have been on the hunt for new enemies,” the researchers wrote. “They decided to scapegoat nicotine, and as a result, the fight against smoking gradually transformed into a fight against nicotine. Such an approach has dire consequences: fewer people switching to less harmful alternatives.”
The paper was co-authored by Michael Landl, director of the World Vapers’ Alliance, and Maria Chaplia, research manager at the Consumer Choice Center This six reasons listed to stop the war against nicotine the paper recommends are:
People consume nicotine, but they die from smoking
Nicotine in patches and gums is not a problem — it is neither (a problem) when vaped nor in a pouch
Addiction is complex and not solved by a war on nicotine
Nicotine makes some people smarter, stronger and more attractive
Misconceptions about nicotine are hindering progress
Prohibition never works
“Put practical solutions first: to reduce smoking rates, public health needs to make use of all available possibilities. People who cannot quit smoking should be encouraged to switch to less harmful alternatives. Nicotine is not the main problem when it comes to smoking, the toxins are,” the researchers recommend to policy makers. “Regulation must be drafted according to the actual risk of a product. Vaping or snus are less harmful than smoking, hence must be treated differently. Nicotine doesn’t become a poison when delivered through vaping. When nicotine isn’t a problem in gums and patches, it can’t be a bigger problem in vaping. The moral panic when it comes to nicotine must end.
“Addiction is complex and is not solved with a war on nicotine. When it comes to addiction, public health policies should not single out a single substance. Potential benefits of nicotine must be explored and unbiased scientific endeavors must be ensured. Public policy must accept that many people use nicotine recreationally. A war on nicotine will fail like the war on drugs or alcohol prohibition failed. Public misconceptions about nicotine must be fought. They discourage people from switching to less harmful alternatives and therefore hurt public health.”
The vapor industry continues to face several regulatory challenges. One of the most challenging of those is the seemingly never-ending battle against flavor bans for e-liquids. As most any vaper will tell you, flavors are instrumental in keeping former smokers from returning to combustible cigarettes. However, flavors are also what many industry regulators and anti-vapor advocates say lure youth to try vaping.
During Vape Live, a three-day virtual trade show and seminar hosted by Ireland-based Vapouround magazine, flavors and flavor bans in the United States, the world’s largest vapor market, were trending topics. Carlo Infurna Wangüemert, a vapor market analyst with ECigIntelligence, a regulatory research resource for the e-cigarette and tobacco alternatives industry, discussed recent market trends and the factors that are influencing the U.S. vapor market.
Wangüemert said that several factors are affecting the U.S. market: the e-cigarette or vaping use-associated lung injury (EVALI) scare, the Covid-19 pandemic and the U.S. Food and Drug Administration’s (FDA) premarket tobacco product applications (PMTAs). He said that Covid-19 didn’t impact market growth as much as it impacted consumer behavior.
Yael Ossowski / Credit: Consumer Choice Center
“We’ve seen a reduction of purchasing occasions and an increase of basket sizes [during the Covid-19 crisis],” he said. “We’ve also observed consumers buying a lot before the crisis in order to have enough stock in case of lockdowns, and it might also have affected the supply side as many independent shops had to close or have suffered an important drop of sales.”
Concerning supplies, Wangüemert sees the PMTAs drastically reducing the amount of variety on the market as many brands will try to keep their offerings as simple as possible. Before the FDA’s ban on prefilled flavored vape pods, those products represented half of the U.S. vapor market. Now, there is a rise in disposable e-cigarettes and refillable pod systems, according to Wangüemert. He said that this has led to several innovations in flavor output, such as better coils in open pod systems.
“Basically, hardware manufacturers are trying to develop new features and improving the functionality of their devices to make them small but complex enough to cover all vapers’ needs,” said Wangüemert, citing innovations that allow vapers to change temperature or change from mouth-to-lung to direct-to-lung with just one button as examples.
Refillable pod systems are the fastest-growing trend in the vapor industry, according to ECigIntelligence data. This is because they offer a larger selection of flavored e-liquids. Prefilled pods, however, are dropping because the only available flavors, tobacco and menthol, generate less complexity.
“Prefilled pods … show fairly well how regulation can have an impact on the market,” he said. “This ban is fully enforced online as only those two flavors are offered currently. We’ve observed an ongoing drop in the complexity of their flavors. Tobacco is [now] probably the most important flavor in prefilled pods.”
The U.S. market has also seen a surge in nicotine strengths, brought on mostly by the growing popularity of nicotine salts. Wangüemert said that nicotine salt-based e-liquids have been continually gaining ground during the last three years to the detriment of freebase liquids. “However, it is also interesting to point out that the average nicotine strength of nicotine salts is slowly going down,” he said.
Fruit flavors are also steadily rising in the U.S. market, according to Wangüemert. He said that fruit e-liquids, dessert and candy flavors all consume the Top 5 positions in flavors for e-liquid sales in 2020. “For the fruit category, which is mainly tropical fruits, mainly mango, are the ones helping the most in the growth of that category,” he said, adding that beverage flavors are also growing quickly, with lemonades experiencing a substantial amount of growth. “This might also be linked to the popularity of fruits, as lemonades are likely to contain them,” he explained.
Carlo Infurna Wanguemert / Credit: ECigIntelligence
Looking at tobacco and menthol flavors, Wangüemert explained that e-liquids containing tobacco generally have tobacco as the main flavor. However, menthol is much more popular as a complement to other flavors, such as fruit.
“Only 13 percent of the products that contain menthol have menthol as the main flavor. But [for] the other 87 percent, menthol is a complement or a cooling agent, being particularly popular in the fruit category,” he said. “Of course, these 87 percent of e-liquids that contain menthol that do not have it as the main flavor are more subject to potential bans than menthol-only flavors, which have been already excluded. However, our 2019 vape shop survey points out that menthol and tobacco represent just a small percentage of vape store revenues, meaning that flavor bans at the state level or even the consequences of the PMTA might strongly reduce their income and the vaping market in general as the offerings and variety of e-liquids were strongly reduced.”
Also speaking during Vape Live, Yael Ossowski, deputy director for the Consumer Choice Center (CCC), a consumer advocacy group, said that flavor bans in many U.S. states have had a major impact on the growth of the vapor market. States with strict flavor bans have seen major declines, with many vapers in those states returning to combustible products.
This prompted his organization to rank states by vaping regulations and the impact those regulations had on the vapor market. The group looked at how all 50 states confronted flavor restrictions, taxes and whether the state allowed for online sales. The CCC gave each state a number of points depending upon how much consumers were subject to the criteria. States that scored between 0–10 points received an F, 11–20 points received a C and 21–30 points received an A.
The states best suited for vaping were colored green on the corresponding chart while the worst states were colored red and middle-ground states were colored yellow. “For green states, we’ve got South Carolina, Georgia; we’ve got Iowa, Virginia, Florida, Texas and Oregon. You’ll notice, obviously, the red states, the places where we’re dealing with partial flavor bans, high taxes, shipping restrictions, there’s six of them.
Places like California, New York. You have New Jersey, Massachusetts, Rhode Island and Illinois,” said Ossowski. “Now we have our states in yellow. These are places that had a flavor ban in the past, and perhaps they’ve gotten rid of it, or it has not yet come into force. You have some taxation. It’s probably a bit more moderate than definitely those red states. And it has fewer shipping restrictions. People are able to order their vaping products online.”
One of the worst states, New York, has a tax rate of 20 percent of the retail price. Online sales are banned and all flavored products, except tobacco and menthol, are banned. These states, with low rankings, are also prone to other negatives for the vapor market, such as a growing black market, according to Ossowski.
California also has a statewide ban that is supposed to go into effect on Jan. 1, 2020. California also has several cities, such as San Francisco, that have banned vapor products entirely. It should be noted that, in California, flavor bans typically are only focused on nicotine vapor products, not marijuana vapor products. This is especially puzzling since the U.S. Centers for Disease Control and Prevention (CDC) has stated that the EVALI lung disease scare was caused by black market marijuana vapor products, not nicotine products.
“There is a lot of work that has been done by some very enterprising young journalists that kind of details everything with the black market when it comes to flavored vaping products. And that’s only just now burgeoning up in New York,” Ossowski explained. “There could be a lot more on this. We’re going to see. There’s not the biggest mainstream coverage on this.”
Credit: Consumer Choice Center
One of the main reasons that the CCC compiled the data and ranked the states is that the consumer group doesn’t want other states to follow behind states like California and Illinois by banning or restricting flavored vapor products. Ossowski said that these bans are detrimental to public health.
“It’s very dangerous. And in a way, by making it more expensive and pushing people often to the illegal market, not only are you seeing your price go higher, you’re also making it more difficult for people to acquire the products that they have transitioned away from tobacco to use. And we thought we’d actually be saving their lives and improving their lives. But what we see more often than not is that legislators make it harder,” he said. “They make it more difficult, and they actually put way more cumbersome barriers in the way so that you and I cannot access those products. We really do need to concentrate on laws, on policies, on studies, on figuring out who are the legislative champions that we can turn to in state legislatures or in the federal bureaucracy to be able to ensure that we have better laws that will enable harm reduction, that will enable us to continue to have vaping products for sale.”
The Consumer Choice Center has released a new report that considers existing age restrictions on the sale of vaping products and then suggests several policies to reverse low enforcement rates of current rules.
Fred Roeder – Credit: Consumer Choice Center
To reduce the rate of vaping by youth, the Consumer Choice Center report recommends four actions:
Enforce strict age restrictions on vaping devices and liquids at the point of sale.
Use modern age-verification technology for online sales.
Learn from other industries such as alcohol and fireworks on how to improve compliance rates.
Retail and industry should be encouraged to be more proactive with the enforcement of rules.
Don’t punish legal adult vapers for the lack of enforcement of age restrictions.
Fred Roeder, health economist and author of the report, stated in an email that most countries have already drawn a line of when it is legal to vape (enacted age-to-purchase laws).
“We don’t face a lack of legislation but a lack of compliance with existing rules and regulations. We looked at similarly regulated industries such as alcohol and gambling and found that these tend to have smarter enforcement mechanisms,” he wrote “There are many innovative tools out there to ensure only adult customers can buy vaping products. Digital ID checks and industry initiatives to ID customers that look young are better ways to solve the problem than additional laws such as flavor bans.”
