Leadership for the city of Missoula, Montana Missoula’s have recommended that the city not enforce its ban against flavored vaping products until May. Enforcement was to begin Monday.
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The decision comes after two Missoula vape shops and the Montana Smoke Free Association filed suit against Mayor John Engen, Missoula County health officer Ellen Leahy and the city of Missoula.
The lawsuit claims the city’s ordinance flies in the face of state law because the ban applies to adults as well as juveniles, according to NBC Montana. Engen told the Council he’d like to postpone that until May to see what the legislature might do and to prevent unnecessarily spending taxpayer money on litigation. No one objected.
The latest round of restrictions for the vaping industry by Nova Scotia’s government has caught the ire of the co-owner of a vape shop in Dartmouth. William MacEachern of the Cloud Factory Vape Shop is seeking an injunction against the eastern Canadian province’s newest restrictions on vaping, arguing they unfairly burden adults who are trying to kick a bad habit.
Credit: Fraser Institute
MacEachern launched a constitutional challenge against increased taxes on vaping products, a ban on flavored e-cigarettes and e-liquids, and a prohibition on sampling items in vaping shops, according to Global News. His lawyers say the case is about Nova Scotians’ access to a valuable harm reduction tool in the war against a “No. 1″ killer: cigarettes.
“In basically doubling the cost of our applicant’s vaping products, it greatly reduces their access,” said MacEachern’s lawyer, Sarah Emery. “We’re not arguing that he has an economic interest to cheap vape products as a recreational use, we’re arguing this is a matter of access and that goes to Section 7 rights to security of the person.”
Emery and her partners at Patterson law are seeking an immediate suspension of vaping rules that came into effect in 2020 — rules that earned the province a good deal of praise from Canadian health advocates when first announced in 2019.
In April 2020, Nova Scotia became the first Canadian province to ban the sale of flavored vape juices and e-cigarettes in an effort to reduce their appeal to youth. Higher taxes went into effect in September that year, bringing the rate to 50 cents per ml of e-liquid, and 20 percent of the retail price of all devices.
Proposed vaping regulations are now open for public comment in New Zealand. The country’s Ministry of Health is encouraging New Zealanders to have their say and provide feedback on draft regulations for electronic nicotine delivery systems (ENDS) under the Smokefree Environments and Regulated Products Act. The online consultation opens today.
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An amendment to the Smokefree Environments and Regulated Products Act 1990 (the Act) commenced on 11 November 2020. “The amendment means that vaping products are now controlled in a similar way to tobacco products,” Jane Chambers, group manager at the Ministry of Health, said in a press release. “However, new regulations are required to fully deliver the changes sought by the Government and to support the right settings for the legislation.”
The health agency is seeking public feedback on the draft regulations because “if we want to get it right, it’s important everyone has a chance to have their say.” Feedback is expected to help shape the final regulations.
“The proposed regulations cover a range of areas including the display of vaping products in retail stores and websites; the use of harm reduction statements in retail stores and websites; the display of R18 notices at vaping points of sale; packaging requirements for vaping products; and the responsibilities of manufacturers and importers who intend to sell vaping products or smokeless tobacco products.
“I encourage people to read the draft regulations and provide feedback using the online tool or download the feedback form and email it to vaping@health.govt.nz.
“This consultation is an important step towards better supporting smokers to switch to regulated products that are less harmful than smoking and to protect children, young people and non-smokers from the risks associated with vaping and smokeless tobacco products,” Chambers said.
The consultation closes at 5pm on March 15, 2021. The final regulations will be announced sometime after the close of consultation. It is expected they will take effect in August 2021, with anonymous submissions published on the Ministry of Health website.
Californians will decide next year if flavored vaping products should be banned. The California Secretary of State’s office certified a referendum challenging the state’s ban on flavored vapor and other tobacco product sales had garnered more than the minimum number of valid signatures. The referendum will head to the ballot in November, 2022.
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The ban is on hold and retailers can continue selling flavored e-liquids and other products until votes are cast. The ban had been set to go into effect on Jan. 1, 2021, but was delayed until the signature verification process had been completed. I
n order to qualify for the ballot, organizers of the referendum submitted more than 1 million signatures, as they needed to get 623,212 verified signatures from California voters. On Friday, the Secretary of State’s office published a report indicating that organizers had gathered 781,885 valid signatures.
Had the minimum number of valid signatures not been met, the law would have taken effect once the Secretary of State had verified the process was complete. The election is scheduled for Nov. 8, 2022, and those results will then need to be certified. If the law banning flavors is approved, it would go into effect on Dec. 8, 2022.
It did not make it illegal to possess or use such products, however. In addition to the referendum, the state has also been sued over the ban by R.J. Reynolds Tobacco Co., R.J. Reynolds Vapor Co., American Snuff Co. LLC, Santa Fe Natural Tobacco Co. Inc., Philip Morris USA Inc., John Middleton Co., U.S. Smokeless Tobacco Co. LLC, Helix Innovations LLC, Neighborhood Market Association Inc. and Morija LLC, which does business under the name Vapin’ the 619. That litigation is currently ongoing.
A House bill heard a Montana state house legislative committee last week would limit local control on alternative nicotine and vapor products, retroactively canceling the City of Missoula’s flavored vape ban passed by the Missoula City Council last November.
House Bill 137, sponsored by Rep. Ron Marshall, R-Hamilton, aims to amend the State of Montana’s Youth Access to Tobacco Act by clarifying that alternative nicotine products are separate from tobacco products, according to a story on kpax.com
It would also prevent and stop any regulation on nicotine and vapor products by local governments, health boards and the Montana Department of Public Health and Human Services – an agency that attempted to eliminate the sale of flavored e-cigarettes last summer.
“It needs to be addressed,” said Marshall, who was part of a trade association who unsuccessfully sued over former Gov. Steve Bullock’s 120-day flavored e-cigarettes ban as co-owner of Freedom Vapes in Belgrade, Bozeman and Hamilton.
“There’s a lot of holes, and 56 counties in Montana means 56 different sets of rules. Everything should go through the legislative body when it comes to law. It’s just one of those things where everybody needs to be on the same page, and we need to have a clear definition of what these products are.”
Marshall said that HB 137 has been coming for a long time, and with COVID-19, laws restricting alternative nicotine products cause substantial damage to a retailer’s revenue earnings.
“Right now, with the climate out there with COVID and lost jobs and businesses and all that, coming up with another attempt to shut down more business or curtail more business is the wrong answer,” Marshall said. “You’re not only doing that, but you’re also taking away revenue. And that’s revenue that not only goes to the cities and counties, but to the state. Let’s back up and look at the big picture.”
When the Missoula City Council was discussing its flavored vape ban, City Attorney Jim Nugent said it would likely face a lawsuit as it was written at the time. Council members made changes to the ordinance to strengthen it against any legal challenge.
The city’s flavored vape ban will go into effect on Jan. 25, and Missoula County may use its extraterritorial powers to extend the ordinance five miles beyond city limits.
Nugent said the city hasn’t faced a lawsuit regarding the ordinance, and with the final section of HB 137 stating that the bill would apply retroactively, the city likely won’t face a lawsuit. Nugent said the retroactive portion of the bill is aimed at Missoula.
“Instead of a lawsuit, it is now being challenged through the Legislature,” Nugent said.
Councilmember Gwen Jones, one of the five sponsors of the ordinance, said in a statement to the Missoula Current that she hopes the legislature lets the ordinance stand.
A tobacco flavor ban that includes vaping products has cost the state of Massachusetts nearly $75 billion in taxes. According to a study by the New England Convenience Store and Energy Marketers Association (NECSEMA), excise tax lost income in Massachusetts from selling fewer menthol cigarettes alone amounted to $62 million in the first six months of the ban. No specific figures were given for electronic nicotine delivery systems in the release.
Credit: Ruben Bagues
That loss also simply transferred to Massachusetts’ neighboring states. Cigarettes excise tax stamp sales dropped 23.9 percent in Massachusetts while New Hampshire gained $28,574,340 or 29.7 percent. Rhode Island gained $12,100,000 or 18.2 percent in excise taxes.
The estimated Massachusetts loss including the sales tax is $73,008,000 while Rhode Island saw a gain of $14,066,740.
“With every month that passes, the state’s ban on flavored tobacco becomes increasingly absurd,” said Jonathan Shaer, executive director of NECSEMA. “All anyone needs to do is look at the excise tax stamp numbers from June through November to understand how ineffective and ridiculous this ban is. Rhode Island and New Hampshire have combined to sell 18.9 million more stamps than they did over the same period in 2019 while Massachusetts has sold 17.7 million fewer. Indisputably, menthol cigarettes are purchased in neighboring states and then brought back into Massachusetts for personal consumption or illicit market sales.”
NECSEMA opposed the flavored tobacco ban in 2019 when it was first presented, and continues to monitor sales data to demonstrate the failure of the law and the wrongful impact to its members. The association represents both chain and independent convenience store owners, including many in urban communities that NECSEMA states are being disproportionately affected by the flavor ban ban.
According to the National Association of Convenience Stores (NACS), there are 3,360 convenience stores in Massachusetts with 54,000-plus employees accounting for $17 billion in sales annually. Over 89 percent of legal cigarette sales occurring at convenience stores.
“I challenge anyone to demonstrate how this ban has been effective,” Shaer said. “New Hampshire and Rhode Island imports have replaced sales once made in Massachusetts by licensed retailers. In fact, the latest data shows an uptick in cigarette sales when you combine the increases for non-flavored cigarettes in Massachusetts with total cigarette sales gains in New Hampshire and Rhode Island. Massachusetts small businesses have lost, the Massachusetts budget has lost, public health has lost, and youth who this law was allegedly intended to protect have lost since prevention revenue has greatly diminished.”
A recently proposed ban on vaping flavors in the Netherlands will endanger public health, according to the Independent European Vape Alliance (IEVA).
Around 65 percent of adult vapers in Europe use fruit or sweet liquids. According to the IEVA, the variety of flavors is one of the most important reasons for smokers to switch to e-cigarettes and for vapers not to go back to smoking.
Ignoring this fact, the Dutch State Secretary Paul Blokhuis announced a ban on all e-cigarette flavours except tobacco flavors in the Netherlands, to discourage youth smoking.
“This measure risks very negative consequences for public health and tobacco harm reduction,” the IEVA wrote in a statement. “With only tobacco flavors left, vapers’ threshold to relapse on tobacco smoking dangerously lowers.”
A public consultation on the plan will run until Jan.19, 2021. The vast majority of the comments so far come from vapers and scientists who reject the government’s plan.
According to the IEVA, the Dutch plan ignores important facts:
The number of young people in the Netherlands who have ever tried e-cigarettes has decreased by a quarter in the past five years.
Only 0.2 percent of 14-16 olds in the Netherlands vaped regularly in 2019.
8 percent of all Dutch users of e-cigarettes come from smoking.
“Removing flavours will not affect the rates of youth cigarette use,” said Riccardo Polosa, professor of internal medicine and specialist of respiratory diseases and clinical immunology at the University of Catania. “But, it will certainly reduce the number of options available for those adults who seek to quit smoking for good and find flavoured e-cigs effective.”
The IEVA also expressed concern about the impact of the Dutch flavor ban on the debate at the Conference of the Parties to the World Health Organization’s Framework Convention on Tobacco Control, which is scheduled to take place in November in The Hague.
“Implementing the ban on flavorings could have negative effects on the conference,” cautioned IEVA Chairman Dustin Dahlmann. “Rather, COP9 should pay attention to the topic of harm reduction through e-cigarettes, so that the number of smokers worldwide could be significantly reduced”
“Flavour is not a gateway to youth uptake of smoking. No evidence substantiates the association between vaping flavours and subsequent smoking initiation. We call on the Dutch government to drop this plan. There are no winners in a flavor ban, only losers.”
The Missoula County Commissioners in Montana has provisionally voted to expand the city’s vape ban five miles beyond city limits in what commissioner’s say is an effort to reduce youth access to vape products.
Credit: Antonin Fels
The ordinance restricts self-service display of all vaping and tobacco products and prohibits the sale of flavored e-liquids and other tobacco products, according to an article on khq.com. The approval is provisional, meaning it will be discussed again on Jan. 28 before there is a final vote of approval.
Public comment is available online, via mail or at the county commissioners meeting on Jan. 28.
In late November, the City of Missoula, Montana banned flavored vaping products and not flavored combustible tobacco products. Now, Missoula County is considering using its extraterritorial powers to extend the city’s ban on the sale of flavored vapes and their display five miles outside city limits next week.
In late November, the City of Missoula, Montana banned flavored vaping products and not flavored combustible tobacco products. Now, Missoula County is considering using its extraterritorial powers to extend the city’s ban on the sale of flavored vapes and their display five miles outside city limits next week.
If approved, it would be the first time Missoula County applied its extraterritorial powers in four years. The last time it did was related to the city’s smoking ordinance.
“This initially started with the health board adopting a resolution and asking both the commission and City Council to do something to stop the epidemic of youth tobacco, especially using vape products,” said Shannon Therriault, county director of environmental health. “We were seeing a giant increase in the number of kids becoming addicted to nicotine, and a lot of that traces back to flavored tobacco products.”
The city ordinance goes into effect this month.
The city ordinance bans the display of self-service tobacco products of any kind, except where children aren’t permitted. It also banned the sale of all flavored electronic tobacco products, and made it illegal to sell tobacco to anyone under the age of 18.
“The health board reviewed it and approved. Now, it’s coming to the commissioners to review and approve,” said Therriault, according to the Missoula Current. “If approved, it can be applied five miles outside the city limits. It’s great, because it takes in a large amount of the area – the urban area.”
The original city ordinance included a ban on all flavored tobacco, which had the support of health officials but was opposed by dozens of businesses and tobacco users.
Two California cities have become the only jurisdictions in the U.S. to eliminate the sale of all vaping and traditional tobacco products. On January 1st, Beverly Hills and Manhattan Beach, both in the Los Angeles area, began to enforce the strictest vaping rules in the country. The law also included a phase-out period for retailers to empty their shelves of e-cigarettes. Other cities are considering enacting similar bans.
The Beverly Hills City Council, the first to pass its ordinance, proposed the rule nearly three years ago during a meeting discussing the potential ban of flavored vaping products. Ultimately, the council settled on a total ban of all vaping and traditional tobacco products.
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“Somebody’s got to be first, so let it be us,” said then-Mayor, current Councilmember John Mirisch, who first proposed the concept in 2017, according to a press release. Mirisch recently joined the Board of Trustees of the advocacy group Action on Smoking & Health (ASH), which coordinates Project Sunset, an effort to phase out tobacco sales worldwide.
“Cigarettes have become so normalized that to some this might seem like a drastic step,” said Chris Bostic, ASH Policy Director. “But if another product emerged tomorrow that was highly addictive and killed when used as intended, of course we’d ban its sale. We’d probably charge the people who marketed it with manslaughter too.”
Total vaping and tobacco bans have been gaining traction more recently, within the public health community and more broadly. The Danish Institute for Human Rights, after concluding a human rights assessment of Philip Morris International in 2017, concluded that “there can be no doubt that the production and marketing of tobacco is irreconcilable with the human right to health. For the tobacco industry, the UNGPs [United Nations Guiding Principles on Business and Human Rights] therefore require the cessation of the production and marketing of tobacco.”
Vapor industry advocates say that banning e-cigarettes only pushes former combustible cigarettes smokers back to combustibles. They also say that vaping bans increase the size of the black market. Black market THC vaping products were the cause of a lung disease that sickened and killed numerous youth in 2019.
