Testimony before the Suffolk County Legislature Health Committee regarding a proposed ban on flavored e-cigarettes
Proposal would ban sales of all flavored electronic cigarettes and vaping devices in Suffolk County, New York.
Testimony before the Suffolk County Legislature Health Committee
Lindsey Stroud, State Government Relations Manager
The Heartland Institute
November 21, 2019
Chairman Spencer and members of the committee, thank you for taking the time today to discuss the issue of banning sales of flavored electronic cigarettes and vaping devices. 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 on the proposed ban on flavored electronic cigarettes and vaping devices.
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 deter youth consumption of tobacco products are laudable, policymakers should refrain from proposals that would restrict adult access to tobacco harm reduction products.
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. Since their introduction to the U.S. market in 2007, an estimated three million American adults have used these products to quit combustible cigarettes. 
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.
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.”
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.” In 2018, the agency reiterated its findings that vaping is “at least 95% less harmful than smoking.”
In 2016, the Royal College of Physicians found the use of e-cigarettes and vaping devices is “unlikely to exceed 5% of the risk of harm from smoking tobacco.” 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.”
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 have no impact on youth e-cigarette use. 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. Results from the 2018 National Youth Tobacco Survey concluded only 8.1 percent of high school students had reported using tobacco cigarettes. 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.” 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.”
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 in marijuana.
On October 15, 2019, the Centers for Disease Control and Prevention (CDC) noted 78 percent of patients with vaping-related lung injuries, reported using THC vaping devices.
State health departments have reached similar conclusions. In October 2019, the Utah Department of Health concluded 94 percent of the states’ patients with a vaping-related lung injury, “self-reported vaping THC products.” 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.” 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.”
The CDC, and other state health departments, have also linked vitamin E acetate as the probable chemical agent causing vaping-related lung illnesses. In a November 8 Morbidity and Mortality Weekly Report, the CDC examined data from 29 patients in 10 states, with recent vaping-related lung injuries. Vitamin E acetate was found in all 29 patient samples.
On September 5, the New York State Department of Health (NYDOH) reported lab results “showed very high levels of vitamin E acetate in nearly all cannabis-containing samples analyzed.” Since September, NYDOH investigated the health effects of vitamin E acetate “when inhaled because its oil-like properties could be associated with the observed symptoms.”
The Utah Department of Public Health (UDPH) announced on September 30 the state’s Public Health Laboratory tested 39 vaping products, including 19 THC-containing cartridges and 20 nicotine-containing products. Vitamin E acetate was detected in 90 percent of the THC-cartridges, whereas 100 percent of nicotine-containing liquids “contained nicotine and none have shown unexpected compounds.”
Although the specific effects of vaping vitamin E acetate are still unknown, the substance is a lipid, or oil, which is “highly toxic and [has] been associated with lung injury for years.”
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 flavors in e-cigarettes “appear to contribute to both perceived pleasure and the effort to reduce cigarette consumption or quit smoking.” 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.” Of the respondents who 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.” Moreover, 83.2 percent and 72.3 percent of survey respondents reported vaping fruit and dessert flavors, respectively, “at least some of the time.”
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%).” 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.Additionally, a 2018 “systematic review of research examining consumer preference” for flavors concluded adults “in general also preferred sweet flavors.”
Suffolk 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 614 inspections in tobacco retailers located in Suffolk County. Only 33 retailers, or 0.05 percent, were found in violation of selling a tobacco product to minors. Of these, violations involving cigarette sales were far greater than e-cigarettes, with 19 retailers being cited for selling a cigarette to a minor, whereas only nine retailers were cited for selling an electronic cigarette or vaping device to a minor. 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.
In a recent sting targeting underage sales of tobacco and vaping products, law enforcement in Suffolk County arrested 30 individuals for selling e-cigarettes to minors. In September, county law enforcement announced they had targeted 120 different retailers and found “about 20 percent allegedly sold e-cigarettes and tobacco products to those under 21 years old.”
Local Schools Are Tackling the Issue with Smart Policies
In response to vaping rates among youth, in January, 2019, Suffolk County Executive Steve Bellone announced the creation of the “Vape Out” program, which was to be piloted in four different school districts, including North Babylon, Hampton Bays, Port Jefferson and Bayport-Blue Point school districts. Vape Out consists of three different programs, including a “peer-to-peer education program, an alternative-to-suspension enforcement program, and a community-and-parent education forum.”
Suffolk County’s three-pronged approach should prove to be invaluable. A review of literature examining the effects of youth tobacco prevention campaigns suggest programs “that embrace a ‘social influences’ model tend to be the most effective, especially when enhanced by an extensive community based health education” program.
Because these pilot programs debuted in early 2019, it is impossible to determine if youth vaping has decreased in response to the Vape Out program.
Lawmakers Should Allocate 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 curb tobacco use. Although not county specific, 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 allocated just $39.3 million, or 1 percent, on tobacco education and prevention programs.
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.”
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 use of e-cigarettes and earmark adequate funding for smoking education and prevention programs.
Thank you for your time today.
 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.
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