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Testimony before the Albany County Legislature

November 12, 2019

Testimony before the Albany County Legislature regarding banning sales of electronic cigarettes and flavored tobacco products including menthol cigarettes and flavored cigars.

Testimony before the Albany County Legislature
Aaron Stover, Director, Federal Government
Lindsey Stroud, State Government Relations Manager
The Heartland Institute
November 12, 2019

Chairwoman Joyce and members of the legislature, thank you for taking the time today to discuss the issue of banning sales of electronic cigarettes and flavored tobacco products including menthol cigarettes and flavored cigars. The Heartland Institute is a 34-year-old independent, national, nonprofit organization whose mission is to discover, develop, and promote free-market solutions to social and economic problems. Heartland is headquartered in Illinois and focuses on providing national, state, and local elected officials with reliable and timely research and analyses on important policy issues. Heartland would like to submit the following testimony regarding the proposed ban.

Many localities and states have proposed banning flavored tobacco products altogether in an effort to combat what the media and some public health officials have declared is a “youth vaping epidemic.”

Although addressing policies that could help to deter youth consumption of tobacco products are laudable, policymakers should refrain from proposals that would restrict adult access to tobacco harm reduction products. Moreover, localities aiming to further restrict adult access to flavored tobacco products such as flavored cigars and menthol cigarettes are impeding on the choices of adults.

 

E-Cigarettes and Tobacco Harm Reduction

E-cigarettes have emerged as an effective smoking cessation tool, with a recent study in the New England Journal of Medicine finding their use to be “twice as effective” as nicotine replacement therapy (i.e. gums and lozenges), in helping smokers quit.[i] Since their introduction to the U.S. market in 2007, an estimated three million American adults have used these products to quit combustible cigarettes. [ii]

Combustible tobacco cigarettes contain 600 ingredients and when burned, emit an estimated 7,000 chemicals.  Ample research indicates it is the smoke created by burning cigarettes that produces the most severe harm. Whereas, e-cigarettes generally contain five ingredients and when used, emit a vapor significantly less harmful than combustible cigarettes.[iii]

These findings have been noted by numerous public health groups. Most recently, the American Cancer Society noted in June 2019 “that e-cigarette use is likely to be significantly less harmful for adults than smoking regular cigarettes.”[iv]

These findings are similar to other public health agencies’ conclusions. In 2015, Public Health England, a leading health agency in the United Kingdom and similar to the U.S. Food and Drug Administration found “that using [e-cigarettes are] around 95% safer than smoking,” and that their use “could help reducing smoking related disease, death and health inequalities.”[v] In 2018, the agency reiterated its findings finding vaping to be “at least 95% less harmful than smoking.”[vi]

In 2016, the Royal College of Physicians found the use of e-cigarettes and vaping devices “unlikely to exceed 5% of the risk of harm from smoking tobacco.”[vii] In 2018, the National Academies of Sciences, Engineering and Medicine concluded e-cigarette use results in “reduced short-term adverse health outcomes in several organs.”[viii]

The So-Called Youth Vaping Epidemic

Despite lawmakers’ intentions, flavor bans have little effect on youth e-cigarette use. The Heartland Institute examined the effects of flavor bans, finding these measures to have no impact on youth e-cigarette use.[ix] For example, Santa Clara County, California, banned flavored tobacco products to age-restricted stores in 2014. Despite this, youth e-cigarette use increased. In the 2015-16 California Youth Tobacco Survey (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.

Further, youth tobacco use is at historic lows. According to the Centers for Disease Control and Prevention’s 1998 Morbidity and Mortality Weekly Report, in 1997, 36.4 percent of high school students reported using combustible cigarettes in the 30 days preceding the survey.[x] Results from the 2018 National Youth Tobacco Survey concluded that only 8.1 percent of high school students had reported using tobacco cigarettes.[xi] This is a 28.3 percent decrease. Further, total tobacco product use is also significantly lower than 1990s levels, from 42.7 percent in 1997 to 27.1 percent in 2018.

Additionally, bans on electronic cigarettes and vaping devices have seemingly increased youth use of other tobacco products. For example, after  initiating a task force to combat youth e-cigarette sales, Lancaster County, Nebraska reported sales of vaping products to minors decreased “from 21.2 percent in 2017 to 5.3 percent in 2018.”[xii] Meanwhile, sales of non-vaping tobacco products increased during the same period, from 5.9 to 8.7 percent. A 2015 study reached similar conclusions, finding bans on the sales of e-cigarettes to youth increased smoking rates by “1.0 percentage point.”[xiii]

Recent Vaping-Related Lung Illnesses Overwhelmingly Linked to Black Market THC

Many lawmakers are proposing flavor bans to address recent vaping-related hospitalizations. Unfortunately, such measures are unlikely to have any effect on vaping-related lung illnesses as these are being increasingly linked to the use of vaping devices containing tetrahydrocannabinol (THC), the psychoactive ingredient found in marijuana.

On October 15, 2019, the Centers for Disease Control and Prevention (CDC) noted that 78 percent of patients with vaping-related lung injuries, reported using THC vaping devices.[xiv]

State health departments have reached similar conclusions. In October 2019, the Utah Department of Health concluded that 94 percent of the states’ patients with a vaping-related lung injury, “self-reported vaping THC products.”[xv] In August, the Wisconsin Department of Health Services reported 89 percent of patients interviewed had “reported using e-cigarettes or other vaping devices to inhale THC products, such as waxes and oils.”[xvi] Further, a September 6 report in The New England Journal of Medicine examined hospitalizations in Illinois and Wisconsin. Of the 53 case patients the authors examined, 84 percent “reported having used [THC] products in e-cigarette devices.”[xvii]

The Importance of Flavors in Harm Reduction

The use flavors in e-cigarettes is vital for these products’ success with many former smokers crediting flavors for their ability to give up combustible cigarettes.

A 2013 internet study concluded that flavors in e-cigarettes “appear to contribute to both perceived pleaser and the effort to reduce cigarette consumption or quit smoking.”[xviii] A 2015 online survey conducted by the Consumer Advocates for Smoke Free Alternatives Association (CASAA) examined 27,343 Americans over the age of 18. Seventy-two percent of the respondents “credited tasty flavors with helping them give up tobacco.”[xix] Of the respondents that were still smoking, “53% say interesting flavors are helping move them toward quitting.”

A 2018 survey of nearly 70,000 American adult vapers “found flavors play a vital role in the use of electronic cigarettes and vaping devices.”[xx] Moreover, 83.2 percent and 72.3 percent of survey respondents reported vaping fruit and dessert flavors, respectively, “at least some of the time.”[xxi]

A 2017 study discovered older adults “use of an e-cigarette flavored with something other than tobacco (69.3%) was … significantly higher than the same at initiation (44.1%).”[xxii] Thus, e-cigarette users often first consume tobacco flavored e-liquids and products but then transition to other flavors, helping aid their cessation of combustible cigarettes.

Another 2017 study examined the impact of a flavor ban in electronic cigarettes and vaping devices. The authors concluded banning flavors “would result in increased choice of combustible cigarettes,” and they said they expect e-cigarette use to decline by approximately 10 percent if flavors are banned.[xxiii]Additionally, a 2018 “systematic review of research examining consumer preference” for flavors concluded adults “in general also preferred sweet flavors.”[xxiv]

Menthol Bans Will Have Little Effect on Smoking Rates, Lead to Black Markets

Beyond e-cigarettes, policymakers’ fears about the role of menthol and flavorings in cigarettes and cigars are overblown and banning these products will likely lead to black markets.

Data from the National Health Interview Survey (NHIS) finds nearly a third of all American adult smokers smoke menthol cigarettes. In a 2015 NHIS survey, “of the 36.5 million American adult smokers, about 10.7 million reported that they smoked menthol cigarettes,” and white menthol smokers “far outnumbered” the black and African American menthol smokers.[xxv]

Although lawmakers believe banning menthol cigarettes will deter persons from smoking those, such a ban will likely lead to black markets. A 2012 study featured in the journal Addiction found a quarter of menthol smokers surveyed indicated they would find a way to purchase, even illegally, menthol cigarettes should a menthol ban go into place.[xxvi] Further, there is little evidence that smokers would actually quit under a menthol ban. A 2015 study in Nicotine & Tobacco Research found only 28 percent of menthol smokers would give up cigarettes if menthol cigarettes were banned.[xxvii]

In the event of a flavor ban, many Albany residents will turn to the black market, which residents in the county are already aware of. As recently as October 11, 2019, New York state tax investigators “seized more than 7,4000 untaxed cigars and 3.6 pounds of untaxed loose tobacco” in Albany County.[xxviii] Because of its exorbitant taxes, New York City is currently “the cigarette smuggling capital in the nation,” with a booming black market that was attributable to approximately $740 million in lost tobacco revenue in 2015.[xxix]

Further, menthol bans would require law enforcement to enforce such bans and will likely lead to racial repercussions. Although white Americans smoke more menthol cigarettes than black or African Americans, “black smokers [are] 10-11 times more likely to smoke” menthol cigarettes than white smokers.[xxx]

Given African Americans’ preference for menthol cigarettes, a ban on menthol cigarettes would force police to further scrutinize African Americans and likely lead to unintended consequences. Lawmakers in Albany should reexamine the case of Eric Garner, a man killed while being arrested for selling single cigarettes in the city. In a recent letter to the NYC council, who are also debating a ban on menthol cigarettes, Garner’s mother, as well as Trayvon Martin’s mother, implored officials to “pay very close attention to the unintended consequences of a ban on menthol cigarettes and what it would mean for communities of color.”[xxxi] Both mothers noted that a menthol ban would “create a whole new market for loosies and re-introduce another version of stop and frisk in black, financially challenged communities.”  

Albany County Retailers Already Do Good Job in Enforcing Age Requirements to Purchase Tobacco Products

The U.S. Food and Drug Administration (FDA) regularly performs tobacco compliance checks in which the agency uses a minor to attempt to purchase tobacco products including cigars, cigarettes, e-cigarettes and smokeless tobacco.

From January 1, 2018 to September 30, 2019, FDA conducted 69 inspections in tobacco retailers located in Albany County. Only four retailers, or 0.05 percent, were found in violation of selling a tobacco product to minors.[xxxii] Further, FDA conducted 11,024 compliance checks for the state of New York during the same time period and only 756 retailers were in violation of selling tobacco products to minors.

Lawmakers Should Divert More Tobacco Moneys on Tobacco Control Programs

Rather than impede access to tobacco products, policymakers should utilize existing funding from tobacco moneys on programs that can help curb tobacco use. Although not county specific, the State of New York spends very little on tobacco prevention. In 2019, New York received an estimated $2.0371 billion in tobacco settlement payments and taxes, yet only allocated just $39.3 million, or one percent, on tobacco education and prevention programs.[xxxiii]

Further, New York actually relies on tobacco sales. In fact, the state’s pension fund has investments in “Philip Morris, Altria, Reynolds America, British American Tobacco and Imperial Tobacco.”[xxxiv]

*****

It is disingenuous that lawmakers would purport to protect public health yet restrict access to safer products. Rather than restricting access to tobacco harm reduction products and flavored tobacco products, lawmakers should encourage the use of e-cigarettes and work towards earmarking adequate funding for smoking education and prevention programs.

 

Thank you for your time today.

 

[i] Lindsey Stroud, “Randomized Trial Finds E-Cigarettes are More Effective Smoking Cessation Tool Than Nicotine Replacement Therapy,” Research & Commentary, The Heartland Institute, February 11, 2019, https://www.heartland.org/publications-resources/publications/research--commentary-randomized-trial-finds-e-cigarettes-are-more-effective-smoking-cessation-tool-than-nicotine-replacement-therapy.

[ii] M. Mirbolouk et al., “Prevalence and Distribution of E-Cigarette Use Among U.S. Adults: Behavioral Risk Factor Surveillance System,” Annals of Internal Medicine, August 28, 2016, https://annals.org/aim/article-abstract/2698112/prevalence-distribution-e-cigarette-use-among-u-s-adults-behavioral.

[iii] Brad Rodu et al., “Vaping, E-Cigarettes, and Public Policy Toward Alternatives to Smoking,” The Heartland Institute, February 20, 2017, https://www.heartland.org/publications-resources/publications/vaping-e-cigarettes-and-public-policy-toward-alternatives-to-smoking.

[iv] American Cancer Society, “What Do We Know About E-Cigarettes?” June 19, 2019, https://www.cancer.org/cancer/cancer-causes/tobacco-and-cancer/e-cigarettes.html.

[vi] A. McNeill et al., “Evidence review of e-cigarettes and heated tobacco products 2018,” Public Health England, February 2018, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/684963/Evidence_review_of_e-cigarettes_and_heated_tobacco_products_2018.pdf.

[vii] Royal College of Physicians, Nicotine without Smoke: Tobacco Harm Reduction, April, 2016, https://www.rcplondon.ac.uk/projects/outputs/nicotine-without-smoke-tobacco-harm-reduction-0.

[viii] Committee on the Review of the Health Effects of Electronic Nicotine Delivery Systems, “Public Health Consequences of E-Cigarettes,” The National Academies of Science, Engineering, and Medicine, 2018, https://www.nap.edu/catalog/24952/public-health-consequences-of-e-cigarettes.

[ix] Lindsey Stroud, “Research & Commentary: Flavor Bans Do Not Reduce Youth E-Cigarette Use,” Research & Commentary, The Heartland Institute, August 29, 2019, https://www.heartland.org/publications-resources/publications/research--commentary-flavor-bans-do-not-reduce-youth-e-cigarette-use.

[xi] Centers for Disease Control and Prevention, “Data Visualization: Tobacco Product Use Among High School Students – 2018,” February 11, 2019, https://www.cdc.gov/vitalsigns/youth-tobacco-use/data-visualization.html#info1.

[xiii] Lindsey Stroud, “How Do Electronic Cigarettes Affect Adolescent Smoking,” Research & Commentary, The Heartland Institute, March 28, 2016, https://www.heartland.org/publications-resources/publications/research--commentary-how-do-electronic-cigarettes-affect-adolescent-smoking?fbclid=IwAR3MXDoO2v8rmSyez8yhSxLDNe_pTQJAPzbKRlWx8AIMTZeBMsMg88o7xnw.

[xiv] Lindsey Stroud, “Research & Commentary: Centers for Disease Control and Prevention Reports THC-Containing Device Cause Most Vaping Illnesses,” Research & Commentary, The Heartland Institute, October 21, 2019, https://www.heartland.org/publications-resources/publications/research--commentary-centers-for-disease-control-and-prevention-reports-thc-containing-devices-cause-most-vaping-illnesses.

[xv] Lindsey Stroud, “Research & Commentary: Utah Department of Health Links More Than 90 Percent of Vaping Hospitalizations to THC, Still Restricts Access to Tobacco Harm Reduction Products,” Research & Commentary, The Heartland Institute, October 16, 2019, https://www.heartland.org/publications-resources/publications/research--commentary-utah-department-of-health-links-more-than-90-percent-of-vaping-hospitalizations-to-thc-still-restricts-access-to-tobacco-harm-reduction-products.

[xvi] Lindsey Stroud, “Research & Commentary: Vaping-Related Hospitalizations and Deaths Linked to THC Products,” Research & Commentary, The Heartland Institute, September 10, 2019, https://www.heartland.org/publications-resources/publications/research--commentary-vaping-related-hospitalizations-and-deaths-linked-to-thc-products.

[xvii] Jennifer E. Layden, M.D., et al., “Pulmonary Illness Related to E-Cigarette Use in Illinois and Wisconsin – Preliminary Report,” The New England Journal of Medicine, September 6, 2019, https://www.nejm.org/doi/full/10.1056/NEJMoa1911614?fbclid=IwAR0kTs_r_tf_FmGLzEWRoaLk7-yS1URk9xe1euOoKQuwpZwx0CN79edr5Do.

[xviii] Konstantinos Farsalinos et al., “Impact of Flavour Variability on Electronic Cigarette Use Experience: An Internet Survey,” International Journal of Environmental Research and Public Health, December 17, 2013, https://www.mdpi.com/1660-4601/10/12/7272/htm.

[xix] Vape Ranks, “Large Survey Finds E-Cigarettes Do Help Smokers Quit,” January 12, 2016, https://vaperanks.com/large-survey-finds-e-cigarettes-do-help-smokers-quit/.

[xx] Lindsey Stroud, “Research & Commentary: Largest Vaping Survey Finds Flavors Play Important Role in Tobacco Harm Reduction,” Research & Commentary, The Heartland Institute, October 2, 2018, https://www.heartland.org/publications-resources/publications/research--commentary-largest-vaping-survey-finds-flavors-play-important-role-in-tobacco-harm-reduction.

[xxi] Ali Anderson, “Ex Smokers Prefer Fruity E-Liquids Says Doctor’s FDA Survey,” Vaping, August 14, 2018, https://vaping.com/blog/news/ex-smokers-prefer-fruity-e-liquids-says-doctors-fda-survey/.

[xxii] M.B. Harrell et al., “Flavored e-cigarette use: Characterizing youth, young adult, and adult users,” Preventative Medicine Reports, March 2017, pp. 33-40, https://www.sciencedirect.com/science/article/pii/S2211335516301346.

[xxiii] John Buckell, Joachim Marti, and Jody L. Sindelar, “Should Flavors Be Banned in E-Cigarettes? Evidence on Adult Smokers and Recent Quitters from a Discrete Choice Experiment,” National Bureau of Economic Research, September 2017, http://www.nber.org/papers/w23865.pdf.

[xxiv] Samane Zare et al., “A systematic review of consumer preference for e-cigarette attributes: Flavor, nicotine strength, and type,” PLoS ONE 13(3): e0194145. https://doi.org/10.1371/journal.pone.0194145.

[xxv] Brad Rodu, “Who Smokes Menthol Cigarettes?” Tobacco Truth, December 4, 2018, https://rodutobaccotruth.blogspot.com/2018/12/who-smokes-menthol-cigarettes.html.

[xxvi] RJ O’Connor et al., “What would menthol smokers do if menthol in cigarettes were banned?” Addiction, April 4, 2012, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3370153/.

[xxvii] Olivia A. Wackowski, PhD, MPH, et al., “Switching to E-Cigarettes in the Event of a Menthol Cigarette Ban,” Nicotine & Tobacco Research, January 29, 2015, https://www.researchgate.net/publication/271592485_Switching_to_E-Cigarettes_in_the_Event_of_a_Menthol_Cigarette_Ban.

[xxviii] New York State Department of Taxation and Finance, “7,400 Cigars, More than $1,000 in Cash, Untaxed Tobacco, and Van Seized in Illicit Tobacco Bust,” October 11, 2019, https://www.tax.ny.gov/press/rel/2019/schdycigar101119.htm.

[xxix] Gregory Bresiger, “NYC is the cigarette smuggling capital of the US: study,” New York Post, November 11, 2017, https://nypost.com/2017/11/11/nyc-is-the-cigarette-smuggling-capital-of-the-us-study/.

[xxx] D. Lawrence et al., “National patterns and correlates of mentholated cigarette use in the United States,” Addiction, December, 2010, https://www.ncbi.nlm.nih.gov/pubmed/21059133.

[xxxi] Carl Campanile, “Menthol cig ban will lead to more stop-and-frisk: Moms of Garner, Martin,” New York Post, October 16, 2019, https://nypost.com/2019/10/16/menthol-cig-ban-will-lead-to-more-stop-and-frisk-moms-of-garner-martin/.

[xxxii] U.S. Food and Drug Administration, “Compliance Check Inspections of Tobacco Product Retailers,” September 30, 2019, https://www.accessdata.fda.gov/scripts/oce/inspections/oce_insp_searching.cfm.

[xxxiv] Ben Jay, “New York’s pension funds still invest in guns, tobacco and oil,” City & State New York, April 3, 2018, https://www.cityandstateny.com/articles/policy/labor/new-yorks-pension-funds-still-invest-guns-tobacco-and-oil.html.

Author
Lindsey Stroud is a state government relations manager at The Heartland Institute.
lstroud@heartland.org
Author
Aaron Stover is the Director of Federal Government/Corporate Relations at The Heartland Institute
astover@heartland.org