October 7, 2019

On September 17, 2019, New York Gov. Andrew Cuomo issued an order to the New York Department of Health (NYDOH) banning the sale of flavored electronic cigarettes and vaping devices. With the swipe of a pen, New York became one of the first states to ban flavored e-cigarette products. Shockingly, NYDOH gave retailers “an approximate two-week grace period before conducting visits to enforce” the ban, with inspections “beginning on Friday, October 4.” Retailers in violation were to “face fines of up to $2,000 per violation.”

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On October 3, 2019, in response to a lawsuit filed against the ban by the Vapor Technology Association and two vaping manufacturers (VTA et al.), a New York Appellate Court “granted a temporary restraining order to halt New York’s enforcement of the ban.” The ban is effectively delayed until October 18, 2019.

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New York’s flavor ban is just one of many by states that have prematurely reacted to recent headlines purporting hospitalizations due to lung illnesses caused by vaping devices. Cuomo also cited flavors as “a principal reason that youth initiate and maintain e-cigarette use.” He is dead wrong.

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Although reducing youth e-cigarette use is laudable, flavor bans are unlikely to actually reduce youth e-cigarette use. Further, such policies restrict adult access to tobacco harm reduction products, which have helped an estimated three million American adults quit smoking combustible cigarettes. Flavor bans are also likely to have little impact on hospitalizations, as the Centers for Disease Control and Prevention (CDC) and state health departments are increasingly linking recent vaping-hospitalizations to the use of vaping products containing tetrahydrocannabinol (THC).

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To date, flavor bans have had little to no impact on youth vaping rates. 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 were enacted.

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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.

The notion of banning flavors in e-cigarette products in response to recent vaping-related hospitalizations is asinine. Once again, the CDC and several state health departments have linked the vast majority of recent vaping-related hospitalizations to the use of illicit and unregulated products, not lawful and regulated flavored products.

A CDC Morbidity and Mortality Weekly Report obtained information for 514 of 805 possible vaping-related hospitalizations. Of the 514 patients, 395, or 77 percent, “reported using THC-containing products.”

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Many states have reached similar conclusions. The Connecticut Department of Health “interviewed nine of [their state’s] 13 patients with vaping-related injury.” All nine patients reported the use of THC products. The Texas Department of State Health Services identified 75 potential vaping-related hospitalizations, with “87% of cases interviewed” reporting using THC products. Of the 23 potential vaping-related hospitalizations in Iowa, 18 patients “have reported the use of THC.”

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Further, Oregon’s two vaping-related deaths have been attributed to THC products, as announced September 3 and September 26. The Minnesota Department of Health reported an individual died from a “lung injury [that] was associated with vaping illicit THC products.”

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A statewide flavor ban will also prove to be a huge economic loss for New York. In its lawsuit, VTA et al. notes that “the [New York] vapor industry accounts for over [$1.197 billion] annually in economic output and generates jobs for approximately 8,110 individuals.” This industry annually pays an estimated $99 million in state taxes and more than $30 million in sales taxes. Additionally, most brick-and-mortar vape shops in the Empire State “are small businesses, with many having five or fewer employees.”

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It is disingenuous that New York would eliminate a tobacco harm reduction tool for New Yorkers while dedicating very little of the abundant tobacco moneys it receives to programs that can help smokers quit. In 2019, New York received an estimated $2.0371 billion in tobacco settlement payments and taxes, yet only allocated $39.3 million, or 1 percent, on tobacco education and prevention programs. Further, New York has securitized tobacco settlement payments, with 35 counties and New York City bonding out future tobacco settlement money, and “in some cases, counties received far less in revenues.” New York state’s pension fund also has investments in “Philip Morris, Altria, Reynolds America, British American Tobacco and Imperial Tobacco.”

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Evidence suggests that flavor bans do not decrease youth e-cigarette use. Rather than imposing bans on flavored vaping devices, New York should allocate more of the bountiful tobacco moneys it receives to tobacco control programs. Further, public health agencies are increasingly linking vaping-related hospitalizations to the use of illicit and unregulated vaping devices, and a flavor ban will essentially extinguish a $1 billion industry in the Empire State.

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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.