Fight against flavored e-cigarettes goes local

State and local governments are moving to ban flavored e-cigarette products in response to the Trump administration’s lack of action on rising youth vaping rates. 

The bans are being pushed by influential anti-tobacco advocates and public health groups, who argue flavors like mint and fruit have helped create a youth vaping epidemic. 

While Massachusetts recently became the first state to ban all flavored tobacco products, more states could follow in 2020 when legislatures reconvene.

“I think we will see an unprecedented level of action in the state legislatures,” said Matt Myers, president of the Campaign for Tobacco-Free Kids, one of the groups lobbying for flavor bans. 

“As Washington capitulates to the [tobacco] industry, more and more states are deciding they can’t wait and they need to act.” 

Research from the federal government shows the number of kids who are vaping reached an all-time high this year: 27.5 percent of high school students said they have recently used an e-cigarette, compared to the 20.8 percent who said the same in 2018.

Public health groups and anti-tobacco advocates argue Juul, the biggest e-cigarette company in the U.S., spurred a youth vaping “epidemic” by marketing its products to children with sleek designs and fruity, sweet flavors. 

Juul, which came to the U.S. market in 2015, has denied those allegations but stopped selling fruit, mint and other flavors in October as it faced scrutiny from federal regulators.

Indeed, 59 percent of high school students who told researchers they have recently vaped said Juul was their “usual” brand, and 66 percent said they preferred fruit-flavored products. 

The Trump administration announced in September it would soon clear the market of all flavored e-cigarettes.

But President Trump has since said he wants to find a compromise that preserves flavors for adults while keeping them away from kids after he was reportedly warned of political repercussions of a ban on flavored e-cigarettes by political advisers. 

The slow pace of action by the White House has frustrated public health groups who argue flavored e-cigarettes should have been pulled from the market years ago. 

Now they’re ramping up lobbying efforts at state and local governments, where they’ve had more success.

Governors in several states passed emergency regulations banning flavored e-cigarette sales this fall but most were blocked in the courts through lawsuits filed by the industry. But legislatures in those states will be pressured to act next year.

“Most states found very quickly that in order to make those emergency actions permanent it would require action from state legislatures,” said Cathy Callaway, a state and local campaign director for the American Cancer Society Cancer Action Network, one of the leading organizations pushing for flavor bans and other e-cigarette regulations at the state, local and federal levels.

“I think we will continue to see action in those states where governors have been proactive.”

Myers said he expects debates in eight to 12 state legislatures next year, including in Hawaii, Illinois, California, Minnesota and Delaware.

New York Gov. Andrew Cuomo (D) and Washington Gov. Jay Inslee (D) have both vowed to introduce bills banning flavored e-cigarettes in the Democratic-controlled legislatures in their states next year

New Jersey’s legislature is considering a vaping flavors ban, which Gov. Phil Murphy (D) has said he supports. 

Legislators in Maryland and Rhode Island, as well as local officials in Washington, D.C., have also expressed interest in introducing flavor bans next year. 

Other public health groups are focusing their efforts primarily on the local level since state campaigns can be expensive and hard-fought, according to Jill Birnbaum, the American Heart Association’s (AHA) senior vice president of field advocacy operations. 

Of AHA’s 57 campaigns, 49 are at the city level and eight are focused on states, Birnbaum said. 

And if enough localities in a state pass vaping ban ordinances, it could create momentum for a statewide law, she said. 

More than 161 localities in Massachusetts passed laws banning flavored tobacco sales before Gov. Charlie Baker (R) signed a statewide measure. 

“Where we have the greatest power is the local level,” Birnbaum said, and where the tobacco industry has the least power. 

“In the case of vaping, parents, kids, superintendents — people who care about this issue — those folks are most engaged at the local level, and that’s where the [tobacco] industry has the least power. That’s how we do our best work.” 

“If you create a movement of policy and a swell of opportunity at that local level then yes, it eventually moves up to the state level.” 

As of Nov. 19, more than 230 municipalities — mostly in California and Massachusetts —  have passed laws restricting flavored tobacco sales in some manner, according to the Campaign for Tobacco-Free Kids. 

New York City, San Francisco and Philadelphia have also recently passed flavored vaping bans, and more cities are considering them. 

These efforts are being met with intense pushback from the tobacco and e-cigarette industry. Altria and Reynolds American Incorporated (RAI) have lobbied against flavor bans at the state, local and federal levels, arguing adults rely on flavors to help them switch from cigarettes. 

Instead, the companies support raising the tobacco purchasing age to 21, despite opposing that idea in the past. 

“We think [the U.S. Food and Drug Administration] is in the best position to determine restrictions of e-vapor flavors and agree that action by FDA is needed,” an Altria spokesman said. “We also think raising the legal age of purchase to 21 is an important step and support state legislation and bipartisan legislation in Congress that does that.”

RAI did not respond to an inquiry from The Hill.

Public health groups also support raising the tobacco age but argue much more needs to be done to curb youth vaping rates. 

Nineteen states have already passed so-called “Tobacco 21” laws, and more are likely to do so next year. 

One of the industry’s main strategies is to push for statewide Tobacco 21 laws that block local governments from enacting stronger policies, like bans on flavored tobacco. 

“We will see what I call the ‘Juul game plan’: they’ll argue that what states need to do is better enforce the laws and raise the age of sale. If that worked, we wouldn’t have 3.5 million adolescents already hooked to e-cigarettes,” Myers said. 

–This report was updated on Dec. 9 at 10:54 a.m.