Testimony before the Tennessee Senate Finance, Ways and Means Committee Regarding Vapor Product Regulation and Taxation

04-01-2025 TN HB 968 Vape Directory THR101 Testimony.pdf

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Chairman Watson, Vice-Chair Stevens, and Members of the Committee

Thank you for your time today to discuss the regulation and taxation of vapor products in Tennessee. My name is Lindsey Stroud and I’m a Creator and Manager of Tobacco Harm Reduction 101 (thr101.org), a website dedicated to examining tobacco and vapor product use among adults and youth.

State-ran vapor product directories, though well-intentioned, pose a significant threat to numerous small businesses in Tennessee, while favoring the interests of a handful of companies. The legislation would require states to enforce the U.S. Food and Drug Administration’s (FDA) premarket tobacco product application process, which has already severely stunted consumer access to tobacco harm reduction products, and itself, subject to numerous litigations.

Further, excessive taxation e-cigarettes – or tobacco harm reduction products – disregards the decline in youth vapor use and unfairly punishes adults who rely on e-cigarettes to both quit smoking, as well as remain smoke-free.

Key Points:

• Federal regulation of vapor products makes state directories redundant as the FDA already regulates e-cigarettes and enforces laws against unauthorized sales.
  

• Over the past year, FDA has issued numerous warnings, penalties, and injunctions against unauthorized e-cigarette manufacturers and retailers.
  

• The FDA formed a multi-agency federal task force in June 2024 to combat unauthorized sales and has frequently seized products in conjunction with U.S. Customs and Border Protection.
  

• As of November 2024, FDA has issued civil monetary penalties against 79 manufacturers and 175 retailers for unauthorized sales. Tennessee does not need to dedicate additional resources to regulate a marketplace already under federal oversight.
  

• The proposed legislation essentially endorses FDA’s failure to create a robust marketplace for tobacco harm reduction products. To date, only 34 products have been authorized by the agency, from three manufacturers – all with ties to the combustible cigarette agency. The FDA’s current approval process, stifles competition and is discouraging innovation in harm reduction products.
  

• Several public health groups that support e-cigarette bans also oppose vape directory legislation, including the American Lung Association (ALA), American Cancer Society (ACS), and American Heart Association (AHA) – all of which have testified against state vape directory legislation.
  

• State agencies including Hawaii’s Department of Taxation oppose similar legislation, citing that it is beyond their regulatory function.
  

• As of March 2025, ten states have established vapor product directories – several which have had issues with enforcement and usability.
  

• In Alabama, retailers struggle to access the directory due to website maintenance, and state have officials have removed products without properly notifying retailers.
  

• Oklahoma has authorized more than 11,600 products, which is 22 times more than authorized products in Louisiana. This creates an unfair market disparity among states.
  

• Legal challenges including lawsuits in Kentucky, Louisiana, and Utah have stalled and/or delayed the implementation of directories.
  

• Specialty tobacco and vape retailers are already effectively preventing underage sales. Among FDA compliance checks between 2017 and 2023, specialty shops accounted for only 22.2 percent of all e-cigarette sales to minors. This legislation unfairly punishes these shops, despite their responsible business practices.
  

• State vapor product directories eliminate products that are not overwhelming being used by youth – as in 2024, only 7 percent of U.S. middle and high school students had used open systems or tank e-cigarette products, which would be eliminated under the proposed legislation.
  

• Youth vaping is declining in the Volunteer State.
  

• According to the 2022-2023 TN Together Student Survey, past-month e-cigarette use decreased by 30.9 percent since 2018-2019.
  

• The independent vapor industry provides numerous economic benefits to the state, including employing over 990 Tennessean adults in shops around the Volunteer State in 2023, and generating more than $321.3 million in economic impact, including $24.8 million in state taxes.
  

• E-cigarettes are tobacco harm reduction tools that have been found to be significantly safer than combustible cigarettes.
  

• In Tennessee, more than 566,600 adults 18 years or older were currently vaping in 2023. This was a 79.8 percent increase from 2016.
  

• Among adults who were currently vaping in Tennessee in 2023, 43.1 percent were formerly smoking, 33.8 percent were currently smoking (dual users), and 23.1 percent had never smoked. Among adults who were currently vaping, more than two-thirds (76.9 percent) had formerly and/or currently smoked.
  

• As the only FDA-approved products are tobacco and menthol flavored, this legislation grossly relies on false narratives that flavors are driving a youth vaping epidemic. In 2021, among U.S. middle and high school students who were currently vaping, nearly half (43.4 percent) had used them to self-medicate feelings of anxiety, depression, and/or stress, compared to only 13.2 percent who had cited using them because of flavors.
  

• Flavored vapor products are useful in helping adults quit smoking. A 2018 survey of nearly 70,000 adult vapers found that 83.2 percent reported using fruit flavors, and 73.2 percent had used dessert flavors. A 2019 survey found that less than 5 percent of adult vapers prefer tobacco flavor. A 2020 study found that adults using non-tobacco flavored vapor products were more likely to quit smoking.
  

• State vapor product directories limit options to adults seeking safer alternatives to smoking.
  

• Tobacco harm reduction products, such as e-cigarettes, heated tobacco, snus, and nicotine pouches, are significantly less harmful than traditional cigarettes.
  

• In 2023, Tennessee collected $353 million from tobacco taxes and settlement payments but allocated only $2 million (less than 1 percent) toward tobacco control programs.