Market model for vaping and pot is creating a public health crisis

President Trump has scored a potential victory by announcing his administration will take action to ban the sale of flavored vaping products. It’s a good first step against an industry that appears to be conducting a public health experiment on a generation of American youth.

When vaping came on the scene about a decade ago, state and national public health advocates saw in the new product an opportunity to ameliorate nicotine addiction — that’s cigarettes, a nicotine delivery system — in adults. Tobacco abuse rates among young people had plummeted because of a combination of educational outreach efforts, banned sales to those under 21 in most states, and high “sin taxes” that made the product prohibitively expensive for many. Bans on smoking in public spaces and workplaces, along with the increasing product cost, meant that even many adult smokers were cutting back, with 2017 seeing the lowest level of combustible cigarette use in adults, at 14 percent, a 67 percent decrease from 1965 when anti-smoking efforts began.

In vaping, the public health community saw a chance to again strike a blow in the battle against nicotine addiction in adults. But rather than limiting access using a medical model — allowing vaping only by prescription and with strict controls against youth use — vaping was introduced on a market model, which aims to maximize sales volume. Marketing appears to have been targeted at young people, using flavored products and social media advertising campaigns. While a number of states limited sale to those over 18, as they had with cigarettes, marketers used the modern equivalent of “Joe Camel” apparently to appeal to those under the legal sales age. 

E-cigarette use among middle and high school students experienced a nearly tenfold increase from 2011 to 2015, and over 3 million middle and high school students said they had used e-cigarettes within the past 30 days. The result is that the work of a generation of public health advocacy to reduce or eliminate tobacco use in the U.S. is coming undone. Laxity by state regulators and legislators has allowed the industry to market e-cigarettes to American kids. We are seeing early results: apparent vaping-related deaths and lung damage to young people and a new generation with an addiction problem.

But while we are at it, let’s look at the parallels to marijuana. The movement to legalize pot has been floating around for almost 50 years, but it really took off when the nascent industry hooked up with criminal justice reformers and advocates for medical marijuana. The latter were interested in the very real benefits of pot — or its components, THC and CBD — for the treatment of ailments from glaucoma to cancer pain. Meanwhile, advocates for criminal justice reform sought to legitimize cannabis use, so that arrests for possession for personal use or for small-time dealing would not result in life-altering stigma.

But while some states went the decriminalization route, Colorado, Washington, the District of Columbia and nine other states have gone full bore to legalization; 22 others have broadly defined medical marijuana laws.

In Colorado, which legalized pot after a ballot referendum, it was the industry that crafted the language of the referendum. And they wanted pot to be legal, not decriminalized. The difference is this: Decriminalization is just that — possession does not make you a criminal under state law (although pot is still a Schedule I drug under U.S. law, and as such possession still is a federal criminal violation). Legalization creates a market, and out of that has arisen Big Pot, with big-industry lobbying, just like Big Tobacco — in fact, Altria, the parent company of Marlboro cigarettes, has moved into the pot market in Canada. 

Among the things Big Pot has lobbied against? Controls on flavored pot products and on edibles, such as cannabis gummy bears, cookies and brownies and other sweet treats. Sure, pot brownies may have a nostalgia market among baby boomers, but the target audience remains where the market upside is: young people.

So, while they look at their vaping laws, states also should be reviewing their pot laws, reconsidering the wisdom of letting markets compete for use by teenagers, whose young brains, it has been documented, show changes if they are regular cannabis consumers, with the impact increasingly more significant the younger usage starts. Instead, pot should be available like any other prescription drug, and illicit use and sale of all but commercial quantities should be the subject of civil, rather than criminal, penalties. States with measure under consideration to legalize pot should call a halt to those efforts, and focus instead on rational and well-regulated decriminalization measures.

We need to put the brakes on vaping sales to both adults and teens, too, until further study is complete.

One final thought is on opioids. Unlike the first two examples, opioids are prescription drugs. But Big Pharma is accused of turning the medical model, which relies on physician expertise and discretion, on its head by aggressive marketing to patients as well as doctors, reportedly concealing data on addiction rates and appropriate use protocols. The disastrous result is a full-blown public health crisis. Even today, in big-city hospitals around the nation, a prominent poster in examining and recovery unit rooms asks patients to rate their pain level — and promises they are entitled to be pain-free. The name at the bottom of the poster? A prominent manufacturer of opioid products now caught up in the current scandal.

It’s too late to prevent the opioid crisis. The work of undoing its damage will take years and billions of dollars. But we can do something about vaping and pot. Let’s not let that chance go up in smoke.

Meryl Justin Chertoff is the incoming executive director of the Georgetown Project on State and Local Government Policy and Law, an adjunct professor of law at Georgetown Law School, and a consultant for the Aspen Institute.