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Research & Commentary: Massachusetts Anti-Vaping Bills Will Vaporize Harm Reduction

November 18, 2019

Legislation in the Bay State would ban flavored e-cigarettes, impose an excise tax on such products, as well as capping nicotine levels at 20 milligrams per milliliter.

While Massachusetts residents are subjected to a temporary four-month ban on the sale of all nicotine-containing electronic cigarettes and vaping devices, lawmakers are seeking to ban the sales of flavored e-cigarettes, as well as apply a draconian excise tax on these tobacco harm reduction products.

H 4196 would ban the sale of e-cigarettes with “characterizing flavors,” including flavors “relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.” Persons caught violating the ban by selling flavored e-cigarettes are subject to a $1,000 fine for the first offense, “$2,000 for a second offense and $5,000 for a third or subsequent offense.” Further, law enforcement is authorized to “seize and take possession of” e-cigarettes in violation of the ban, as well as “a motor vehicle, boat or airplane in which the [e-cigarettes] are contained or transported.”

S 2407, an amendment to H 4196, imposes a wholesale tax at 75 percent at the time that e-cigarettes and vaping devices are “manufactured, purchased, imported, received, or acquired in the commonwealth.” S 2407 also enacts a nicotine limit, requiring e-cigarettes’ nicotine content be no “greater than 20 milligrams per milliliter.”

Although the flavor ban and excise tax are intended to curb youth e-cigarette use, flavor bans and taxes are ineffective measures in thwarting the use of electronic cigarettes and vaping devices by minors. Further, such bans ignore the millions of American adult smokers who have used e-cigarettes to successfully transition from combustible cigarettes to vaping devices.

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 went into place.

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.

Another Heartland analysis examined the effects of Pennsylvania’s 40 percent wholesale tax, which went into effect in 2016. The analysis noted that in 2015, that 27 percent of Pennsylvania 12th graders had used an e-cigarette. This increased to 29.3 percent in 2017.

Lawmakers should note flavors are important in both e-cigarette initiation and their continued use. Indeed, a 2018 survey of nearly 70,000 American adults noted 83.2 percent and 72.3 percent of survey respondents reported vaping fruit and dessert flavors, respectively. Further, only 20 percent of respondents reported using tobacco flavors at point of e-cigarette initiation.

While lawmakers are attempting to institute new, heavy-handed excise taxes on e-cigarettes and vaping devices, studies show that flavor bans actually reduce e-cigarette use and push people back to smoking traditional cigarettes. For example, a 2017 study by the National Bureau of Economic Research determined banning flavors in e-cigarettes “would result in the increased choice of combustible cigarettes.” Indeed, the authors estimated e-cigarette use would decrease by approximate 10 percent if flavors are banned.

In a lawsuit filed against Gov. Charlie Baker’s temporary four-month flavor ban, plaintiffs argue the vaping industry employs “approximately 2,530” Massachusetts’ citizens including eight “nicotine-vapor products manufacturers, [one] nicotine-liquid-mixture manufacturers and 221 retail vape shops.” Vaping companies and “their employees contribute nearly $19 million in state taxes.” Further, e-cigarettes in Massachusetts are subject to sales taxes that “generate about $10.7 million annually.” Bans on flavored e-cigarettes will effectively shutter the industry in the Commonwealth as flavored e-cigarettes make up an estimated 90 percent of vape shop sales.

Despite recent alarmism, e-cigarettes and vaping devices are less harmful than combustible cigarettes. In 2015, Public Health England found their use to be “around 95% safer than smoking.” In 2016, the Royal College of Physicians concluded the hazards from e-cigarettes “were unlikely to exceed 5% of the harm from smoking tobacco.” Most recently, in June 2019, the American Cancer Society declared e-cigarettes to be “significantly less harmful” as e-cigarettes “do not contain or burn tobacco.”

Rather than eliminating tobacco harm reduction options for adults, in an effort to reduce youth e-cigarette use, lawmakers should allocate additional funding from tobacco moneys on tobacco control programs. In 2019, Massachusetts received an estimated $864.5 million in tobacco taxes and settlement payments, yet the Commonwealth allocated just $4.2 million of state funding to tobacco education and prevention programs.  

Although addressing youth e-cigarette use is laudable, flavor bans are ineffective at reducing youth e-cigarette use and are likely to lead former smokers back to combustible cigarettes. Further, the e-cigarette industry adds millions of dollars to the Massachusetts’ economy and flavor bans will likely eliminate that revenue. Flavors are an integral part of e-cigarettes’ usefulness as a tobacco harm reduction tool and adults should not be restricted from access to safer tobacco products. Lawmakers should address youth e-cigarette use by diverting additional funding to tobacco control, not restricting adult access.

The following documents provide additional information on e-cigarettes and tobacco harm reduction.

Tobacco Harm Reduction 101: A Guidebook for Policymakers
https://www.heartland.org/publications-resources/publications/latest-heartland-policy-booklet-addresses-vaping-myths
This booklet from The Heartland Institute aims to inform key stakeholders on the much-needed information on the benefits of electronic cigarettes and vaping devices. Tobacco Harm Reduction 101 details the history of e-cigarettes, including regulatory actions on these products. The booklet also explains the role of nicotine, addresses tax policy and debunks many of the myths associated with e-cigarettes, including assertions about “popcorn lung,” formaldehyde, and the so-called youth vaping epidemic.

Podcast Series: Voices of Vapers
https://www.heartland.org/multimedia/podcasts?fromDate=&toDate=&q=voices+of+vapers
In this weekly podcast series, State Government Relations Manager Lindsey Stroud talks with researchers, advocates, and policymakers about tobacco harm reduction and electronic cigarettes. The series provides important information about the thousands of entrepreneurs who have started small businesses thanks to THRs and the millions of adults that have used electronic cigarettes and vaping devices to quit smoking tobacco cigarettes.

Vaping, E-Cigarettes, and Public Policy Toward Alternatives to Smoking
https://www.heartland.org/publications-resources/publications/vaping-e-cigarettes-and-public-policy-toward-alternatives-to-smoking
For decades, lawmakers and regulators have used taxes, bans, and burdensome regulations as part of their attempt to reduce the negative health effects of smoking. Recently, some have sought to extend those policies to electronic cigarettes. This booklet from The Heartland Institute urges policymakers to re-think that tax-and-regulate strategy. Policymakers should be mindful of the extensive research that supports tobacco harm reduction and understand bans, excessive regulations, and high taxes on e-cigarettes often encourage smokers to continue using more-harmful traditional cigarette products.

Research & Commentary: Largest Vaping Survey Finds Flavors Play Important Role in Tobacco Harm Reduction
https://www.heartland.org/publications-resources/publications/research--commentary-largest-vaping-survey-finds-flavors-play-important-role-in-tobacco-harm-reduction
In this Research & Commentary, Heartland State Government Relations Manager Lindsey Stroud examines a survey of nearly 70,000 adult vapers in the United States. The survey was completed in response to the U.S. Food and Drug Administration’s recent Advanced Notice of Proposed Rulemaking seeking comment on the role of flavors in tobacco products. The authors found nearly 95 percent of survey respondents were at one time smokers and the majority reported using flavors at the point of e-cigarette initiation. Stroud compares this to other surveys. She concludes, “eliminating flavors will force [vapers] to vape only tobacco-flavored e-cigarettes, which would likely cause them to return to combustible cigarettes.” Stroud also found research has found e-cigarettes are a key tobacco harm reduction product and could help alleviate state budgets by mitigating health care costs.

Research & Commentary: Flavor Bans Do Not Reduce Youth E-Cigarette Use
https://www.heartland.org/publications-resources/publications/research--commentary-flavor-bans-do-not-reduce-youth-e-cigarette-use
In this Research & Commentary, State Government Relations Manager Lindsey Stroud examines the California Youth Tobacco Survey results from 2017-18, finding youth vaping has increased in several California localities that have restricted access to flavored tobacco product. Stroud finds youth vaping has increased in both Santa Clara and Contra Costa counties. Stroud also notes that banning flavored e-cigarettes is likely to reduce the number of adult smokers switching from combustible cigarettes to tobacco harm reduction devices, and could lead former smokers back to cigarettes.

Research & Commentary: Qualitative Study on E-cigarettes Shows More Evidence of Tobacco Harm Reduction
https://www.heartland.org/publications-resources/publications/qualitative-study-on-e-cigarettes-shows-more-evidence-of-tobacco-harm-reduction?source=policybot
In this Research & Commentary, Heartland Institute State Government Relations Manager Lindsey Stroud examines a study, published in The International Journal of Environmental Research and Public Health in June 2016, that provides additional evidence showing e-cigarettes and vaporized nicotine products (VNPs) are an effective tobacco harm-reduction tool.

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. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, our Consumer Freedom Lounge, and PolicyBot, Heartland’s free online research database.

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartland’s government relations department, at governmentrelations@heartland.org or 312/377-4000.