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November 18, 2019

While Massachusetts residents are subjected to a temporary four-month ban on the sale of all nicotine-containing electronic cigarettes and vaping devices, lawmakers are seeking to ban the sales of flavored e-cigarettes, as well as apply a draconian excise tax on these tobacco harm reduction products.

H 4196 would ban the sale of e-cigarettes with “characterizing flavors,” including flavors “relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.” Persons caught violating the ban by selling flavored e-cigarettes are subject to a $1,000 fine for the first offense, “$2,000 for a second offense and $5,000 for a third or subsequent offense.” Further, law enforcement is authorized to “seize and take possession of” e-cigarettes in violation of the ban, as well as “a motor vehicle, boat or airplane in which the [e-cigarettes] are contained or transported.”

S 2407, an amendment to H 4196, imposes a wholesale tax at 75 percent at the time that e-cigarettes and vaping devices are “manufactured, purchased, imported, received, or acquired in the commonwealth.” S 2407 also enacts a nicotine limit, requiring e-cigarettes’ nicotine content be no “greater than 20 milligrams per milliliter.”

Although the flavor ban and excise tax are intended to curb youth e-cigarette use, flavor bans and taxes are ineffective measures in thwarting the use of electronic cigarettes and vaping devices by minors. Further, such bans ignore the millions of American adult smokers who have used e-cigarettes to successfully transition from combustible cigarettes to vaping devices.

The Heartland Institute analyzed results from the 2017-18 California Youth Tobacco Survey (CYTS) and found that despite flavor restrictions in some localities, youth use of e-cigarettes in those areas increased after the bans went into place.

Santa Clara County, California, banned flavored tobacco product sales to age-restricted stores in 2014. Despite this, youth e-cigarette use increased while the ban was in effect. For example, in the 2015-16 CYTS, 7.5 percent of Santa Clara high school students reported current use of e-cigarettes. In the 2017-18 CYTS, this increased to 10.7 percent.

Another Heartland analysis examined the effects of Pennsylvania’s 40 percent wholesale tax, which went into effect in 2016. The analysis noted that in 2015, that 27 percent of Pennsylvania 12th graders had used an e-cigarette. This increased to 29.3 percent in 2017.

Lawmakers should note flavors are important in both e-cigarette initiation and their continued use. Indeed, a 2018 survey of nearly 70,000 American adults noted 83.2 percent and 72.3 percent of survey respondents reported vaping fruit and dessert flavors, respectively. Further, only 20 percent of respondents reported using tobacco flavors at point of e-cigarette initiation.

While lawmakers are attempting to institute new, heavy-handed excise taxes on e-cigarettes and vaping devices, studies show that flavor bans actually reduce e-cigarette use and push people back to smoking traditional cigarettes. For example, a 2017 study by the National Bureau of Economic Research determined banning flavors in e-cigarettes “would result in the increased choice of combustible cigarettes.” Indeed, the authors estimated e-cigarette use would decrease by approximate 10 percent if flavors are banned.

In a lawsuit filed against Gov. Charlie Baker’s temporary four-month flavor ban, plaintiffs argue the vaping industry employs “approximately 2,530” Massachusetts’ citizens including eight “nicotine-vapor products manufacturers, [one] nicotine-liquid-mixture manufacturers and 221 retail vape shops.” Vaping companies and “their employees contribute nearly $19 million in state taxes.” Further, e-cigarettes in Massachusetts are subject to sales taxes that “generate about $10.7 million annually.” Bans on flavored e-cigarettes will effectively shutter the industry in the Commonwealth as flavored e-cigarettes make up an estimated 90 percent of vape shop sales.

Despite recent alarmism, e-cigarettes and vaping devices are less harmful than combustible cigarettes. In 2015, Public Health England found their use to be “around 95% safer than smoking.” In 2016, the Royal College of Physicians concluded the hazards from e-cigarettes “were unlikely to exceed 5% of the harm from smoking tobacco.” Most recently, in June 2019, the American Cancer Society declared e-cigarettes to be “significantly less harmful” as e-cigarettes “do not contain or burn tobacco.”

Rather than eliminating tobacco harm reduction options for adults, in an effort to reduce youth e-cigarette use, lawmakers should allocate additional funding from tobacco moneys on tobacco control programs. In 2019, Massachusetts received an estimated $864.5 million in tobacco taxes and settlement payments, yet the Commonwealth allocated just $4.2 million of state funding to tobacco education and prevention programs.  

Although addressing youth e-cigarette use is laudable, flavor bans are ineffective at reducing youth e-cigarette use and are likely to lead former smokers back to combustible cigarettes. Further, the e-cigarette industry adds millions of dollars to the Massachusetts’ economy and flavor bans will likely eliminate that revenue. Flavors are an integral part of e-cigarettes’ usefulness as a tobacco harm reduction tool and adults should not be restricted from access to safer tobacco products. Lawmakers should address youth e-cigarette use by diverting additional funding to tobacco control, not restricting adult access.

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute or Tobacco Harm Reduction 101.

Centers for Disease Control and Prevention Link Majority of Vaping-Related Hospitalizations to THC: Welcome
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