Tobacco, vaping products targeted with flavor ban

Boston Statehouse

SPRINGFIELD, Mass. (WWLP) – As more and more young people begin to use e-cigarettes and other vapor products with nicotine, often initially tempted by an appealing flavor, students and lawmakers made their push Tuesday for Massachusetts to ban the sale of almost all flavored tobacco and tobacco products, including mentholated cigarettes and some of the most popular vape products.

The push for a ban on flavored tobacco products comes as high rates of e-cigarette use among Massachusetts teens and the prevalence of vaping frighten doctors and as advocates and supporters of the ban say flavored tobacco and vape products are geared towards teens — 80 percent of high school tobacco users say they’ve used a flavored product in the last 30 days, they said.

Last July, Gov. Charlie Baker signed a law raising the age to purchase tobacco from 18 to 21, a move supporters said would help keep tobacco products out of the social circles of younger teens. This year, policymakers are eyeing approaches aimed at curbing e-cigarette access and use among young people.

Rep. Danielle Gregoire of Marlborough and Sen. John Keenan of Quincy filed bills (S 1279/H 1902) that would ban the sale of all flavored tobacco products in Massachusetts. Keenan said Tuesday the only exception “would be if somebody wants to purchase a flavor in an adult smoking bar, which they can do now with flavored tobacco products.”

The federal government banned all flavors of cigarettes except mint and menthol in 2009. The Keenan/Gregoire legislation would also ban menthol and mint-flavored cigarettes.

“We have limited it and, quite frankly, it’s not working,” Gregoire said when asked why she is seeking to ban all flavored tobacco and vapor products rather than try to further limit their sale to of-age adults. “We know that for every adult that picks up an e-cigarette device, six youth are getting their hands on it and we heard from the students today how pervasive it is in our schools so we know that our ban is not working and we need to go further to protect our youth from these products that literally have no public value.”

Year-over-year in Massachusetts, there has been a 78 percent increase in e-cigarette use among high school students and a 48 percent increase among middle school students, Keenan said.

Dozens of high school and college students who said they use of nicotine vapor products has become a widespread aspect of student life turned out to pitch the bill to the Committee on Public Health, as did about 200 convenience store owners and workers who told lawmakers to find a more effective way to prevent youth tobacco use or vaping.

Matt Murphy, a rising junior at the University of Massachusetts Lowell, said he was addicted to vaping nicotine with a Juul device for about two years until he kicked the habit last summer.

“My addiction cost me thousands of dollars and my tenure as a subservient footsoldier doing the bidding of Juul tormented me mentally,” he said. Other students told stories of walking into school bathrooms to find clouds of vapor rising over stall dividers and seeing other students vape during classes.

Juul has said that it never marketed to anyone underage and always tries to block anyone below the age of 21 from purchasing its products. Last year, it stopped selling some flavors of pods in stores and now only sells them online where the age of a customer can be verified.

“We don’t want anyone who doesn’t smoke, or already use nicotine, to use JUUL products. We certainly don’t want youth using the product. It is bad for public health, and it is bad for our mission,” Juul CEO Kevin Burns wrote in the company’s youth prevention action plan. “Our intent was never to have youth use JUUL products. But the intent is not enough, the numbers are what matter, and the numbers tell us underage use of e-cigarette products is a problem. We must solve it.”

Convenience store owners and managers rallied outside the State House to argue that banning flavored tobacco and vapor products will only change how kids gain access to tobacco and nicotine but won’t actually make kids stop using those products.

“Senate Bill 1279 and House bill 1902, two bills which would ban the sale of all flavored tobacco and nicotine products, may grab headlines but they will not prevent minors from accessing or using these products,” Jonathan Shaer, executive director of the New England Convenience Store and Energy Marketers Association, said. “Instead, they will most certainly drive even more youth to the internet and grow the robust untaxed, unregulated, illicit markets that are already responsible for 30 percent of the cigarettes currently sold in the commonwealth.”

Asked how the state would enforce the prohibition on the internet, where any number of illegal items are readily available for purchase, Keenan said the attorney general’s office has already shown that it is well-positioned to take on enforcement authority.

“The attorney general is already enforcing this industry on the internet. We’ve had an instance where this industry, through a homework site, targeted young people and the attorney general immediately responded,” he said.

Asked if he thinks the attorney general’s oversight would be sufficient, given the NECSEMA argument that 30 percent of all cigarette sales already happens online where the state’s cigarette excise tax is not collected, Keenan said “yes.”

“The message will get out quite quickly that it’s not for sale here in Massachusetts, you’re not going to target young people and the attorney general is going to enforce it,” he said.

Shaer said convenience store owners agree that youth vaping and tobacco use are problems and convenience stores want to be part of the solution. But by imposing an outright ban, lawmakers would be eliminating the state’s “most effective face-to-face gatekeepers,” who Shaer said has an “FDA-verified compliance rate of 95 percent.”

“They have been entrusted by the state to be the gatekeepers for certain age-restricted products such as lottery, beer, and wine, tobacco, and nicotine — a responsibility they take seriously,” he said.

The U.S. Food and Drug Administration’s database of compliance check inspections of tobacco product retailers logged 9,124 inspection reports in Massachusetts between Jan. 1, 2018 and June 30, 2019. Of those inspections, 201 or about 2.2 percent, revealed the unlawful sale of a vapor product to a minor.

Ari Haseotes, president and CEO of Cumberland Farms, said his company has always been committed to keeping tobacco and vaping products out of the hands of children. But he said the state should work with retailers to protect teens without making a popular product wholly illegal.

“Where there is legitimate adult demand for an existing legal product, we need to acknowledge that reality. We know it’s a reality, we see it every day in our stores, and we’ve proven that we can meet that demand in a responsible manner — all while maintaining and even doubling down on our commitment to age compliance,” Haseotes told the Public Health Committee. “We are your partners in that commitment, not your adversaries.”

Shaer said Massachusetts should get more strict about regulating online tobacco sales, increase the fines imposed on retailers who sell tobacco or vapor products to minors, enact a tax on vapor products and put laws on the books to make it a civil offense for someone under 21 to possess or use tobacco products.

“Massachusetts remains one of only five states without some form of purchase, use and possession laws for minors, effectively telling our youth, ‘smoke ’em if you’ve got ’em,'” he said.

In addition to the flavor ban legislation, lawmakers and the governor have also proposed extending the state’s tobacco tax to e-cigarettes and vape products. The six-person committee that’s been reconciling the different House and Senate budgets since early June will need to decide whether to include the vaping tax, which is featured in the Senate spending plan but left out of the House’s, in the eventual fiscal year 2020 budget.


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