Legislation Challenges Threaten the Vitality of Vapor

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Vapor Legilsation Challenges

Trying to keep up and subdue local vapor laws is a bit like beating down the varmints in a round of Whac-A-Mole but with one obvious distinction: The popular arcade game is considered a fun pastime.

Local legislation surrounding vapor continues to pick up speed, popping up faster and more furiously across the country. Currently, the top two local legislative concerns regarding vapor-related ordinances, as identified by the National Association of Tobacco Outlets (NATO), include flavor bans and higher legal age restrictions.

Flavor Under Fire
Flavor bans are one of the fastest-growing proposed restrictions on the local level, with many cities and counties in key areas around the country attempting to prohibit the sale of flavored tobacco products, including flavored e-cigarettes and vapor.

“However, these bans are misplaced because, for the vast majority of the time, retailers are not the source of tobacco for underage youth,” maintains Thomas Briant, executive director of NATO. “Rather, most youth rely on social sources such as older friends, parents and strangers to obtain tobacco products. All that a flavor ban does is punish law-abiding retailers and cause adult consumers to drive to a nearby town or city to not only buy their preferred tobacco products, but gasoline and other products as well, further harming law-abiding retailers.”

However, there is some hope. In April, during the U.S. Senate Committee on Health, Education, Labor and Pensions’ hearing on Dr. Scott Gottlieb’s nomination as U.S. Food and Drug Administration (FDA) commissioner, some senators expressed concerns that flavored vapor products could lure adolescents into experimentation, but Gottlieb declined to commit to a ban on flavored vapor products.

“I recognize there is a line here somewhere,” he said, adding that questions persist around when the devices could aid smoking cessation and when they might serve as a gateway to adolescent smoking. “I think a properly constructed and overseen regulatory process should have the capacity under the authorities Congress gave the agency to make these determinations.”

Tobacco 21 Tornado
Raising the legal age to purchase tobacco products including vapor products—is another major local regulatory trend. Most often, the proposal is to raise the legal purchase age to 21 (which is why it has become known as “Tobacco 21” legislation), “despite the fact that 18-, 19- and 20-year-olds can vote, volunteer to serve in the military, get married, take out loans for college and make their own health care decisions,” points out Briant.

“Legal-age adults should be allowed to make the decision as to whether to use tobacco products or not without government stepping in and dictating what these young adults can and cannot do.”

The overarching regulatory problem for vapor is a good, old-fashioned conflict of interest, says Kathy Hoekstra, the regulatory policy reporter for Watchdog.org. She recently opined that rather than promote what is potentially a lifesaving alternative for smokers, the public health establishment in the U.S. warns against using vapor products for smoking cessation based on “potential health risks,” when, in reality, many vapor opponents have serious conflicts of interest due to financial relationships with pharmaceutical companies that manufacture FDA-approved cessation products.

Taxing Triumph
Meanwhile, there is some good news to report where local vapor legislation is concerned. Recently, the New York Legislature eliminated all language for vapor product regulations from Gov. Andrew Cuomo’s $152.3 billion executive budget proposal that would have imposed a 10-cent per milliliter excise tax on e-liquid. Andrew Osborne, vice president of the New York State Vapor Association, praised the move, saying, “We’re happy to see New York take a step back from these aggressive regulations that would have essentially decimated the entire industry in the Empire State.”

Dr. Edward Anselm, a senior fellow at R Street Institute, also applauded the decision, saying that “common sense appears to have prevailed in the state Senate.” He recognizes, however, that controversies and the need for continued improvement in the state’s performance on tobacco control still exist. He believes the local administration should “convene a panel to review the evidence and set meaningful policies that address the needs of all New Yorkers.”

Pennsylvania’s Senate Finance Committee is also moving on a bill to kill vapor product excise taxes. The bill would eliminate the state’s current 40 percent excise tax on vapor products and replace it with a new, lower excise tax.

Despite all the local legislation vapor momentum, some good, but mostly bad, the industry itself is reportedly on the rise. Florida-based Premier Vapor recently released a statement reporting that, from the inception of the vapor industry, “there has been an exponential growth of up to almost $7 billion in revenues within just a couple of years, with no indications of slowing down.”

Story by Renée M. Covino

This story first appeared in the July/August 2017 issue of Tobacco Business magazine. Members of the tobacco industry are eligible for a complimentary subscription to our magazine. Click here for details.