From 2017 to 2018, the use of electronic cigarettes among high school youth nearly doubled. In response to this uptick in teen vaping, Massachusetts lawmakers have introduced legislation (S1279) to ban the sale of e-cigarettes in the Commonwealth (with the exception of tobacco-flavored products) except in adult-only smoking bars. This bill would also ban the sale of menthol cigarettes. At first blush, it may appear this is strong public health legislation, guided by the principle that we want to limit youth access to an addictive product. But upon closer inspection, it’s clear this bill is about politics, not public health.

Supporters of this proposed bill purport to deem any tobacco product that is addicting large numbers of youth to be off-limits when it comes to sale in convenience stores, gas stations, pharmacies, and other retail outlets. There is one gaping exemption in the legislation, however, that undermines its entire purpose.

Legislators have carved out a huge exception for Marlboro cigarettes – the #1 brand of cigarettes used by youth smokers in Massachusetts. While most Newports, Kools, and Salems could not be sold in the state because nearly all of their sub-brands are menthol-flavored, virtually every sub-brand of Marlboro would be able to remain on store shelves that are easily accessible by minors.

If this legislation goes into effect, it will actually be easier for both youth and adults to get access to a traditional Marlboro cigarette than to a strawberry vape. Youth will quickly figure out that it is much easier for them to smoke than to track down a healthier alternative in an e-cigarette.

The last thing in the world that we should be doing is to give tobacco cigarettes a competitive advantage over fake (electronic) cigarettes, which contain nicotine but do not involve combustion and the release of toxins that are the driver of smoking-related illnesses. There is no justification for targeting e-cigarettes, a less harmful product, while leaving combustible cigarettes on the shelves.

What’s more, by choosing to ban menthol cigarettes, while leaving all other cigarettes untouched, Massachusetts lawmakers are arbitrarily picking one tobacco company over another. There is no public health rationale for singling out certain cigarette brands for a sales ban but not others – these brands are equally deadly.

In fact, the majority of youth smokers prefer non-menthol cigarettes; and the most popular brand among youth smokers is Marlboro, with Newport being a distant third. And the data on cigarette brand preferences among youth do not provide a justification for banning menthol cigarettes and giving non-menthol cigarettes a huge competitive market advantage. If lawmakers are sincere about wanting to protect kids from nicotine addiction, banning Newport sales but allowing Marlboro sales makes no sense.

Why, then, are policy makers targeting e-cigarettes, but not real ones? Why are they ignoring the fact that in 2017, there were 19,000 Massachusetts high schoolers who were current cigarette smokers and an additional 38,000 who had experimented with tobacco cigarettes? Why are they doing nothing to address the 10.3% of high school seniors who are cigarette smokers, according to the most recent data from the Massachusetts Youth Risk Behavior Survey?

Politics. Our elected officials appear not to have the political courage to take on the cigarette industry, with its powerful lobbying, but find it easy to go after a product being sold overwhelmingly by small businesses with little, if any, political influence. They appear to care about our kids only enough to take the politically expedient step of banning e-cigarettes, but not enough to take the principled step of removing from the youth market a product that we know has the potential to kill half of those kids who become addicted to it.

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The Food and Drug Administration (FDA) is actually doing too much to regulate e-cigarettes. While concern over youth use is indeed warranted, the agency’s overall strategy threatens access to e-cigarettes for adult smokers.

E-cigarettes are a great public health advance, intended for smokers who cannot or will not give up nicotine. Vapers inhale nicotine via a propylene glycol-based and/or glycerin-based aerosol estimated to be at least 95 percent less hazardous than conventional cigarettes, which burn tobacco and release carcinogens and carbon monoxide. A recent, rigorous study reported that “vaping” was twice as effective as FDA-approved nicotine replacements (patches, gum, lozenges) in helping smokers quit cigarettes for one year.

Unfortunately however, the FDA’s premarket regulations are needlessly burdensome. They require every electronic cigarette product on the market (the devices and the liquids that give them taste and vapor) to be accompanied by a separate application to the FDA showing that the product is beneficial to the public’s health.

To do this successfully, a company must show that its e-cigarette product is safer than regular cigarettes; that it helps smokers to quit; and that the above benefits won’t be outweighed by the adoption of the product by nonsmokers, including young people. To satisfy this last requirement alone — the so-called population effects — long-term clinical and epidemiological studies are likely to be required.

According to the FDA itself, the cost of processing these applications — dozens to hundreds from each company — will take more than 5,000 hours to complete and cost a minimum of $330,000 per product. This extremely high cost will almost surely limit applicants and thereby protect actual cigarettes upon which the agency, per congressional mandate, can impose no approval requirements.

A far better approach would entail product quality standards, reminiscent of the United Kingdom’s approach. A compendium of agency-issued rules should establish prudent vapor battery and electrical standards that prevent overheating of the charger, explosion, etc., along with restrictions that ban potentially harmful ingredients.

Recently, the FDA has devoted enormous attention to the rise in youth use of Juul, a vaping device. Doubtless, teen use is an unwanted development, but the agency has fomented alarm, absent meaningful evidence of harm to date (including convincing data on a net “gateway-to-smoking” effect or compromised cognitive functioning), regarding the impact of vaping on teens.

There is wide agreement that e-cigarettes should not be available to minors who do not smoke and that the government should restrict marketing to them. But the intense focus on teen use has diverted almost all attention from the importance of adult access.

Availability and product innovation for adult smokers should be encouraged. The FDA has lost perspective when it comes to the adult side of this policy challenge.

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Some lawmakers at the statehouse want to increase taxes on cigarettes to nearly $3 a pack, but a group of convenience store owners said the plan might not work as intended.

Illinois adds a $1.98-tax to each pack of cigarettes. Senate President John Cullerton said he’ll file legislation to increase the tax by a dollar, making it $2.98 a pack.

“The governor’s proposal in cigarette taxes is pretty modest,” Cullerton said.

Gov. J.B. Pritzker proposed increasing cigarette taxes by 32 cents. His administration has said that would provide $55 million in new revenue.

“We have tripled his initial request because we know from this research that we can actually affect behavior,” Cullerton said.

Bill Fleischli with the Illinois Association of Convenience Stores said behavior will be changed if the tax is increased. He said it will encourage people to shop for cigarettes and other things outside of Illinois.

“They’ll buy everything they need, they’ll make a one-stop-shop,” Fleischli said of shoppers going to other states for goods. “They’ll buy their groceries, they’ll maybe take their dry cleaning. All of those things people do on a Saturday, they will do it, and you’ll find volumes drop in the state of Illinois.”

Cullerton said he wants Illinois to be a leader and to have other states follow suit by raising their taxes.

Supporters of increasing the tax have said it will bring in more revenue for the state while encouraging people to quit smoking. To those who question that logic, Cullerton said the state will save much more than it loses in the long run by not having to cover the cost of smoking-related health problems.

There’s also an effort to hike the tax on e-cigarettes.

Smoke-Free Alternative Coalition of Illinois President Victoria Vasconcellos said it’s not fair to lump e-cigarettes, which she called harm-reduction products, in with other legacy tobacco products.

“So cigarettes kill you, vaping products help you quit smoking,” Vasconcellos said. “It doesn’t make any sense to tax someone looking for a healthier alternative.”

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Keep vaping away from kids by restricting access, direct marketing

Just because a kid can potentially gain access to something intended for adults doesn’t mean you ban that item from being sold to everyone.

That goes for cigarettes. It goes for alcohol. And now, it seems, it goes for flavored vaping products.

The Albany County Legislature is among those government entities, including the New York State Legislature, considering trying to ban flavored vaping.

The argument supporters of the ban make is commendable — that too many kids are lured to vaping and its potential harmful effects by the fanciful flavor names like moo coffee milk, circus cookie, dinner lady mango tart and unicorn poop.

They say getting rid of the flavors will discourage kids from picking up the habit.

Vaping has been associated with its own direct health problems, as well as with enticing kids into other harmful habits like smoking.

But while vaping might be bad for kids, it’s proven to be a godsend for cigarette smokers trying to kick the habit.

Smoking is a notoriously difficult habit to break. Vaping products, which either contain no nicotine or very small amounts, has proven to be an effective tool in helping many smokers to quit — more for them than nicotine patches, nicotine gum and quitting cold-turkey.

Vaping gives many smokers the sensation of smoking and fulfills the habitual allure without pumping their lungs full of cancer-causing smoke and chemicals.

Flavors help draw them away from their cigarettes to a less harmful habit. So while a ban on flavored vaping products might discourage kids from picking up vaping, it also may very well deprive some long-time smokers of an effective quitting tool.

The answer isn’t to ban the flavors; it’s to put more restrictions on access to kids.

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San Francisco is on a bit of a banning spree. Last year, it was electric scooters. Now, the city is considering a bill to get rid of cashless stores and legislation that could effectively ban vaping. That last bit of proposed legislation hinges on the idea that we don’t yet know enough about e-cigarettes to allow them. It’s not an outright ban; it’s a proposed ban of vapes that have not undergone review by the Food and Drug Administration. But at the moment, that’s all of them.

The vaping ban is meant to “protect youth from e-cigarettes,” according to a press release put out by City Attorney Dennis Herrera, who is proposing it along with Supervisor Shamann Walton. It’s of a piece with the recent outcry over the “epidemic” of teen vaping, as outgoing FDA Commissioner Scott Gottlieb has described it (he led his agency in restricting the sale of vaping cartridges in flavors like mango and sour gummy). Worry over e-cigs has been building since research last year showed a rise in teen vaping. Juul, the only brand named in the San Francisco press release, is a bit of a phenomenon with teens: The product’s early ads featured young people, and its Urban Dictionary definition notes that the device is “commonly mistaken for a USB stick,” making it easy to conceal at school.

San Francisco is on a bit of a banning spree. Last year, it was electric scooters. Now, the city is considering a bill to get rid of cashless stores and legislation that could effectively ban vaping. That last bit of proposed legislation hinges on the idea that we don’t yet know enough about e-cigarettes to allow them. It’s not an outright ban; it’s a proposed ban of vapes that have not undergone review by the Food and Drug Administration. But at the moment, that’s all of them.

The vaping ban is meant to “protect youth from e-cigarettes,” according to a press release put out by City Attorney Dennis Herrera, who is proposing it along with Supervisor Shamann Walton. It’s of a piece with the recent outcry over the “epidemic” of teen vaping, as outgoing FDA Commissioner Scott Gottlieb has described it (he led his agency in restricting the sale of vaping cartridges in flavors like mango and sour gummy). Worry over e-cigs has been building since research last year showed a rise in teen vaping. Juul, the only brand named in the San Francisco press release, is a bit of a phenomenon with teens: The product’s early ads featured young people, and its Urban Dictionary definition notes that the device is “commonly mistaken for a USB stick,” making it easy to conceal at school.

Cutting down on teen vaping is a fine goal. Like all tobacco products, e-cigarettes cannot be sold to those under 18 years of age (though some states have upped that to 21). But calls like this one show how moral panic over teen e-cigarette use tends to obscure e-cigarettes’ potential as an essential harm reduction tool and a safer alternative to cigarettes, a known cancer causing agent.

The lawmakers behind the San Francisco proposal say they just want the FDA to move faster on evaluating e-cigarettes’ role in public health. It’s true that the FDA has not vetted e-cigarette products—but it has a plan to do so by 2022 (a deadline it pushed back for good reason, as Jacob Grier has argued in Slate). Requiring vaping to be regulated right now or else also stands in contrast to the comparatively lax requirements for cigarettes: As Herrera pointed out to me in an email, “there is no legal requirement for the FDA to conduct that type of review for traditional cigarettes, which were on the market before that law went into effect.”

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San Francisco has a decidedly selective way of policing healthy living. It curbs smoking by banning it nearly everywhere. Yet it still allows tobacco and marijuana sales, gives away syringes to addicts and wants to open drug-injection facilities. City politicians go after Big Soda with glee, but mostly stay out of the way of the more powerful alcohol lobby.

Some of those seeming contradictions make practical sense. Others do not.

This latest one is flat-out ludicrous: Embarrassed that the No. 1 vaping company is prospering on port property, city leaders are in a legal fury. The city attorney and a member of the Board of Supervisors have proposed to bar e-cigarette firms from renting city property and, more sweepingly, block the sale of e-cigarettes in the city.

The stated rationale, of course, is a concern for public health. After all, vaping companies prey on a young audience with candy-flavored offerings and a hip, streamlined device. For other users, e-cigarettes are sold as a pathway from the chemical harms of tobacco, though the danger of nicotine addiction remains.

E-cigs are no fad, with the big tobacco company Altria in December buying a 35 percent share of Juul, based on Pier 70, giving the company a value of $38 billion. This city, an ostensible temple of clean living, is home to the leading edge firm in the vaping game — and yet the proposed measures can’t chase it out of town as long as its lease runs.

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San Francisco has a decidedly selective way of policing healthy living. It curbs smoking by banning it nearly everywhere. Yet it still allows tobacco and marijuana sales, gives away syringes to addicts and wants to open drug-injection facilities. City politicians go after Big Soda with glee, but mostly stay out of the way of the more powerful alcohol lobby.

Some of those seeming contradictions make practical sense. Others do not.

This latest one is flat-out ludicrous: Embarrassed that the No. 1 vaping company is prospering on port property, city leaders are in a legal fury. The city attorney and a member of the Board of Supervisors have proposed to bar e-cigarette firms from renting city property and, more sweepingly, block the sale of e-cigarettes in the city.

The stated rationale, of course, is a concern for public health. After all, vaping companies prey on a young audience with candy-flavored offerings and a hip, streamlined device. For other users, e-cigarettes are sold as a pathway from the chemical harms of tobacco, though the danger of nicotine addiction remains.

E-cigs are no fad, with the big tobacco company Altria in December buying a 35 percent share of Juul, based on Pier 70, giving the company a value of $38 billion. This city, an ostensible temple of clean living, is home to the leading edge firm in the vaping game — and yet the proposed measures can’t chase it out of town as long as its lease runs.

That annoying reality no doubt is stoking the latest legislation. But the crusade needs a reality check. It’s not as if reasonable steps are not being taken to study vaping and restrict its appeal to youth. The city cracked down on flavored e-cigarettes through a ballot measure last year. The federal Food and Drug Administration is entering the picture with its own limitations aimed at curbing sales.

Vaping is a tempting public villain. Manufacturers should be treated with skepticism about claims that vaping is a benign habit. What vaping doesn’t deserve is a dose of shortsighted demonizing that does little to change the bigger picture of tobacco abuse and other health dangers the city is loath to confront.

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Prior to announcing his resignation last week, FDA Commissioner Scott Gottlieb had made ending teen vaping a central goal of his tenure. Determined to eliminate what he frequently termed an “epidemic,” regulators have not only exaggerated the magnitude of the problem, but also threatened retailers with regulatory repercussions. The source of the problem lies elsewhere.

For e-cigarette opponents eager to protect children, there is no regulatory burden too big to impose. On Wednesday Gottlieb delivered on his promise of “vigorous enforcement steps” against tobacco retailers that sell to underage customers. He announced a draft compliance policy with these expectations: “some flavored e-cigarette products will no longer be sold at all…other flavored e-cigarette products that continue to be sold will be sold only in a manner that prevents youth access… some flavored cigars will no longer be sold.”

Last week Gottlieb set the stage by calling out the management of Walgreens, as well as other national gas station and convenience stores such as Exxon, 7-Eleven, and Walmart. Using tough language, he described the FDA’s “boots-on-the-ground presence across the country,” noting the “historic milestone of conducting … one million tobacco retailer inspections” since 2010, which resulted in tens of thousands of warning letters, nearly 20,000 penalties, and 145 “no-tobacco-sale orders.”

Federal data reveals important information, however, that conflicts with the FDA announcement and the perception that teen vaping is a pervasive problem. The Centers for Disease Control and Prevention’s 2017 National Youth Tobacco Survey shows that only about 12 percent of American high school students used e-cigarettes in the past month. Even if the CDC’s observation – based on unpublished data – is correct about a vaping increase in 2018, it doesn’t confirm an epidemic. Nearly 70 percent of the students who vape – but do not smoke – used e-cigarettes five days or less during that 30-day period, a pattern called “party” or “weekend” vaping, not regular, daily consumption.

Another federal survey, dubbed “Monitoring the Future,” reveals more critical teen epidemics: alcohol and marijuana use. Thirty percent of high school seniors use alcohol and 18 percent report being drunk in the past month. Similarly, 22 percent of students report using marijuana – a level that’s remained steady since 1995. In contrast to vaping, considered to be 95 percent safer than smoking and not impacting judgment or inhibitions, teens too often die from accidents related to marijuana and alcohol consumption.

Despite the FDA’s finger-pointing at retailers, only a tiny fraction of American teens who have used e-cigarettes bought them on their own. The FDA’s own survey data backs this up. The Population Assessment of Tobacco and Health (or PATH) survey collects detailed information about teen tobacco use. It reveals that fewer than 10 percent of current teen e-cigarette users – defined broadly as having taken at least one puff in the past 30 days – “bought them myself.” In short, most teens aren’t getting e-cigarettes from retailers willing to break the law for an extra buck. Instead, they get e-cigarettes the old-fashioned way – through friends.

What’s especially egregious about the FDA’s exaggeration is that it’s based on data manipulation. The FDA claimed that 22 percent of Walgreens stores engaged in illegal sales of tobacco products to minors since 2010; and 14 other national retail chains had violations of 15 percent-44 percent. These extremely large numbers, however, are the result of cumulative math over a nine-year period. A closer look at the data reveals that there was a 12 percent violation rate nationally in 2018 – a mere 1 percent higher than in 2015-2016.  And Walgreens’ rate was 9 percent, three points lower than the national average.

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Smoking is well-established as the cause of a number of serious health problems. Often, the burden of these side effects falls heavily upon the government – and more specifically, Medicaid. The government, therefore, has a strong incentive to take an active role in reducing the financial consequences of smoking.

Evidence suggests that electronic cigarettes can substantially reduce the health risks associated with tobacco cigarettes. In a newly updated policy study, Richard B. Belzer, an independent consultant to R Street in regulation, risk, economics and information quality, analyzes the expected savings to Medicaid in the first ten years after switching from traditional tobacco products to electronic cigarettes.

In the full study, Belzer examines and calculates the estimated savings that can be reasonably expected if a number of adult Medicaid enrollees switch. Over 25 years, he estimates that the savings to Medicaid will be approximately $2.8 billion per 1 percent of enrollees. The updated addendum estimates the savings for the first ten years after the switch from tobacco to electronic cigarettes at $410 million—where the median state saves approximately $5 million.

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In seven states and Washington, D.C., it is illegal for retailers to sell tobacco products to anyone younger than 21.

A bill that would make Maryland the eighth state to boost its age-of-consent for cigarette sales cleared an important hurdle Tuesday when the Senate Finance Committee voted 9-2 to advance a measure offered by the panel’s chairwoman, Sen. Delores G. Kelley (D-Baltimore).

The measure, which backers have dubbed Tobacco 21, includes the sales of so-called e-cigarettes, such as JUUL, whose sales have skyrocketed in recent years.

Health advocates high-fived one another outside the hearing room after the bipartisan show of support.

“What we’re really seeing right now is a public health epidemic,” said Laura Hale, head of the Maryland chapter of the American Heart Association. “Our youth are using these products at really high rates. … By raising the age to 21, just like we saw with alcohol, we kick it out of the high schools.”

“Tobacco 21 will save lives,” added Jocelyn Collins of the American Cancer Society’s Cancer Action Network.

At a bill hearing last month, retailers expressed concern that 18-, 19- and 20-year-old store clerks might not be allowed to sell cigarette products as the bill was originally drawn.

Companies that manufacture e-cigarettes are watching Maryland’s actions closely. They claim their products are frequently used by people who want to quit traditional cigarettes.

“Vapor products need to be thought of as a health tool, as a harm-reduction component that allows adult smokers to lead a healthier lifestyle by quitting cigarettes,” said David Pasch, a spokesman for Voices for Vaping, part of the Vapor Technology Association. “It doesn’t make any sense in the world to start taxing and doing other things to discourage people from buying vapor products, when they exist and need to exist to help adult smokers quit.”

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