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November 19, 2019

In an effort to combat youth e-cigarette use, lawmakers in the Garden State are threatening to eliminate tobacco harm reduction options for adults. A slew of legislation has moved forward, all of which aim to regulate and ban the sales of flavored e-cigarettes and menthol combustible cigarettes, as well as impose additional taxes on these products.

A3178 would ban the sales of flavored electronic cigarettes and vaping devices, as well as prohibit the sales of menthol-flavored combustible cigarettes. S3265 would ban the sales of flavored e-cigarettes and does not include menthol tobacco cigarettes.

S4223 “revises licensure” for vaping businesses. Current law only requires a license to sell nicotine liquid. However, S4223 would “require licensure as a condition of selling” any e-cigarette and vaping device. Further, only retailers “that derive 50 percent of retail sales from vapor products may be licensed as a vapor business.” Essentially, the bill would prohibit e-cigarettes sales in convenience stores and allow only brick-and-mortar vape shops to sell such products.

A5922 would increase the fine for selling e-cigarettes and tobacco products to minors. Currently, persons guilty of selling tobacco and vaping products to minors are subject to a $250 fine for the first offense and $500 for the second, third, and subsequent offenses. A5922 would increase this fine to “$500 for a first offense, $1,000 for a second offense, and $2,000 for a third or subsequent offense.” A5922 would also require retailers to install electronic age verification systems.  

Further, A5922 would require all vaping products sold in the state to be registered with the U.S. Food and Drug Administration (FDA). The bill would also limit the amount of nicotine in vaping products to 2 percent, or 20 milligrams per milliliter. Lastly, vaping products “that are designed to mimic the appearance of another object” would be prohibited from sale in New Jersey, under the bill.

Similar to S4223, A5923 revises vaping licenses and would create two different types of licenses for vaping products: “basic vapor licenses for entities seeking to sell electronic smoking devices and liquid nicotine cartridges, and plenary vapor business licenses for entities seeking to sell non-cartridge vaping liquid.” Plenary vapor business license holders would also be required to obtain a basic vapor license.

A5923 would also increase the tax on vaping products. Currently, New Jersey imposes a tax of $0.10 per fluid milliliter and a 10 percent wholesale tax on the retail price of non-cartridge vaping e-liquid. This bill would increase those to $0.20 and 20 percent of retail sale price, respectively. Further, the bill would also “assess a new 20 percent tax on the retail sale price of electronic smoking devices.”

Overwhelmingly, lawmakers are using this slew of legislation to address youth e-cigarette use. Rep. Herb Conaway (D-Burlington), who has sponsored several anti-vaping bills, declared e-cigarettes “that are flavored are designed to attract and addict kids. That’s the bottom line.”

Although addressing youth e-cigarettes is laudable, lawmakers should refrain from enacting policies that limit tobacco harm reduction options for adults. E-cigarettes and vaping devices are  tobacco harm reduction tools that have helped an estimated three million American adults quit combustible cigarettes. Moreover, flavor bans and taxes are ineffective measures to reduce youth e-cigarette use and are more likely to causes former smokers to return to combustible cigarettes while creating black markets.

The Heartland Institute analyzed results from the 2017-18 California Youth Tobacco Survey (CYTS) and found 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 in 2015, 27 percent of Pennsylvania 12th graders 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.

Given the significance of flavors for adults, bans on flavors will actually reduce adult use of e-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 approximately 10 percent if flavors are banned.

A ban on menthol cigarettes will also produce a plethora of unintended consequences. Although white Americans smoke more menthol cigarettes than African Americans, “black smokers [are] 10-11 times more likely to smoke” menthol cigarettes than white smokers. Bans on menthol cigarettes could lead to racial repercussions. This sentiment was expressed in a recent letter from the mothers of Eric Garner and Trayvon Martin to the New York City council, who are debating a ban on menthol cigarettes.” In their letter, they implored lawmakers to “pay very close attention to the unintended consequences of a ban on menthol cigarettes and what it would mean for communities of color.”

Although lawmakers are concerned about youth e-cigarette use, New Jersey retailers have actually sold more cigarettes and cigars to minors than e-cigarettes. From September 1, 2018 to August 31, 2019, FDA conducted 4,667 tobacco product compliance checks on retailers in New Jersey. Of these, only 543, or 11.6 percent involved sales to minors. Of the 543 sales to minors, only 95, or 17 percent, involved sales of electronic cigarette and vaping devices. Surprisingly, retailers were in violation of selling larger amounts of other tobacco products to minors, with cigarettes comprising 54 percent of minor sales with 297 violations, and cigars consisting of 137 violations, or 25 percent of sales to minors.

If lawmakers in New Jersey truly want to address youth e-cigarette use, they should allocate more tobacco moneys to tobacco control programs. In 2019, the Garden State received an estimated $919.6 million in revenue from tobacco settlement payments and taxes. That year, New Jersey allocated only $7.2 million, or 0.007 percent, on tobacco education and prevention programs.

Rather than vaporizing tobacco harm reduction options for adults, New Jersey policymakers should promote e-cigarettes as tools that help smokers quit. Flavors are integral to their efficacy as a cessation device. Further, lawmakers should invest more money into tobacco control programs, if they truly wish to reduce youth e-cigarette use.

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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