Testimony submitted to the All-Party Parliamentary Group on Vaping, May 26th, 2021.
Chair Pawsey, members of the committee, thank you for providing the opportunity to submit comments to the All-Party Parliamentary Group on Vaping’s (APPG) inquiry on post-Brexit regulatory frameworks for reduced-risk nicotine products.
My name is Guy Bentley, and I’m the director of consumer freedom at the Reason Foundation, a nonprofit think tank headquartered in Los Angeles. Reason Foundation’s nonpartisan public policy research promotes choice, competition, and a dynamic market economy as the foundation for human dignity and progress.
The UK has made extraordinary progress in reducing the public health burden of smoking-related diseases. Reasonable taxation and clear communication around the benefits to current smokers of switching to e-cigarettes has had a material impact on smoking rates. The UK’s regulatory framework successfully limits the appeal of nicotine products to youth while maximizing their potential to switch smokers to safer alternatives. Unfortunately, the gains from the current policy are in danger of slowing. According to Action on Smoking and Health (ASH), In 2020, e-cigarette use in Great Britain declined for the first time falling from 7.1 percent to 6.3 percent. One of the key factors likely contributing to this decline is the substantial fall in the percentage of the population who believe e-cigarettes are less harmful than smoking, which dropped from 48 percent in 2019 to 39 percent in 2020.
It’s estimated that in the UK, 78,000 people a year die from smoking-related causes. Nearly half of Britons who try vaping do not succeed in transitioning to e-cigarettes. The persistence of smoking demonstrates the need for a greater variety of reduced-risk nicotine products. Greater product choice and clearer risk communication from both the public and private sectors can ensure that smokers who wish to quit but find e-cigarettes or nicotine replacement therapies unsatisfactory have more options.
Strengthening the e-cigarette market
While e-cigarettes successfully transitioned millions of smokers away from combustible tobacco products in the UK, the vaping market was significantly stymied in achieving greater progress by the EU’s Tobacco Products Directive (TPD). Two aspects of TPD, in particular, proved counterproductive to the aims of tobacco harm reduction.
The first is the limit on nicotine concentration of 20mg/ml for e-liquids. Nicotine content is not limited in such a restrictive manner in other reduced-risk products such as heated tobacco or oral nicotine pouches. To compete more effectively with combustible cigarettes, removing the nicotine cap would allow consumers greater choice in deciding the level of nicotine with which they are most comfortable. A higher nicotine content could prove especially attractive to smokers who are trying vaping for the first time and wish to maintain the per puff nicotine consumption they were experiencing when smoking. There could be financial savings for some consumers by having the opportunity to purchase smaller quantities of e-liquid with more satisfying levels of nicotine.
There is some evidence to suggest that users of low nicotine e-cigarettes puff more often and more intensely than those using higher nicotine products. E-cigarettes are dramatically safer than cigarettes but have not been found to be completely risk-free. There may be some potential benefit to allowing consumers access to higher levels of nicotine, so they reduce the overall amount of e-liquid consumption. Dr. Lynne Dawkins, who led a study examining use patterns in vapers who used low vs higher nicotine e-cigarettes, said: “The results of our study suggest that smokers who want to switch to vaping may be better to start with higher, rather than lower, nicotine levels to reduce compensatory behavior and the amount of e-liquid used.”
The second TPD restriction which could be lifted in a post-Brexit environment is the size limits on refill containers which limit e-liquids to 10ml and e-cigarette tanks to 2ml. These restrictions are arbitrary and do not promote consumer welfare. If anything, these restrictions create unnecessary barriers and inconvenience to the process of switching from smoking to vaping. Removing these restrictions would improve the consumer experience
Public bodies and risk communication
Public health communication in terms of relative risks of e-cigarettes has been a highlight of UK tobacco policy. Unfortunately, disproportionate media attention has been given to misleading research and unrelated health concerns. Most of this misinformation stems from the US. In 2019, the US suffered an outbreak of lung injuries and deaths, which were quickly associated with vaping. In August 2019, the Centers for Disease Control and Prevention (CDC) began investigating the outbreak and termed the condition E-Cigarette or Vaping Product Use-Associated Aung Injury (EVALI). Though it quickly became clear the outbreak was caused by the purchase of illicit THC cartridges laced with vitamin E acetate, which cannot be used in nicotine e-cigarettes, it took until January 2020 for the CDC to remove its guidance advising Americans to refrain from vaping altogether.
The outbreak was covered extensively by the US and UK media, and the ramifications were severe. Several states issued emergency bans on e-cigarette flavors. The Trump administration banned non-tobacco and menthol flavors in closed system e-cigarettes until approved for use by the Food and Drug Administration (FDA). The impact of the EVALI crisis on public opinion was extremely damaging for tobacco harm reduction. A Morning Consult poll published in February 2020 showed 66 percent of adults incorrectly blamed e-cigarettes for the outbreak. The percentage of adults who considered e-cigarettes to be “very harmful” rose to 65 percent, an increase of seven percentage points from September 2019. The CDC has made no effort to correct these misperceptions. UK public health authorities can learn from the mistakes of their US counterparts and forcefully correct popular misconceptions about reduced-risk nicotine products that appear in the media.
As well as continuing to promote e-cigarettes, public health authorities can promote consumers of lesser-known alternatives like nicotine pouches and heated tobacco products. According to ASH, just 10 percent of the public have heard of heated tobacco products, and only one percent have tried them. Increasing awareness of these products’ availability and their relative risks compared to combustible cigarettes could provide significant opportunities to switch smokers who found e-cigarettes unsatisfying to a reduced-risk alternative.
Commercial bodies and risk communication
The UK has some of the most stringent regulations on tobacco products anywhere in the world. TPD also imposed excessively restrictive rules on the advertising of reduced-risk nicotine products. While these regulations may have a public benefit as relates to combustible cigarettes, maintaining all of these regulations stymies both consumer awareness and product competition. It is entirely reasonable for advertising to be restricted to ensure unscrupulous manufacturers are not targeting youth. But it is not inconsistent with public health aims to allow manufacturers to make truthful statements about their products’ relative risk to try and attract current smokers.
In 2019, the first causal study examining whether e-cigarette advertising on television and in magazines in the US context was published in the Journal of Health Economics. According to the authors: “Our results indicate that a policy banning TV advertising of e-cigs would have reduced the number of smokers who quit in the recent past by approximately 3 percent.”
The EU has a long-standing prohibition against snus, an oral tobacco product that is placed under the user’s lip. Sweden is exempt from the ban and has the lowest smoking rate in Europe. Decades of epidemiological evidence have shown snus to be significantly safer than cigarettes. Snus was the first product to be granted a modified risk tobacco product authorization by the FDA, allowing the manufacturer to make specific statements to consumers about the product’s benefits relative to cigarettes. While take-up of snus in the UK is unlikely to reflect that of Sweden as the product has been culturally embedded in Scandanavian countries for 100 years providing another reduced-risk option to those smokers who find the current range of products unappealing would undoubtedly have an effect on the margin. This particular product is exceedingly unlikely to appeal to youth given its lack of history and the UK and minimal interest where it is legal in countries such as Sweden and the US.
Ninth Conference of the Parties (COP9)
From its inception, the Framework Convention on Tobacco Control (FCTC) provided explicit support for harm reduction, stating: “‘tobacco control’ means a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke.” Yet, the World Health Organization has to date, both directly and through the FCTC, sought to limit access to harm reduction technologies that would enable smokers to quit. Should the WHO continue to sideline input from the UK, relevant stakeholders, or downplay the significance of agencies such as the FDA granting reduced-risk products authorization to make positive claims about their toxicity, it will continue to fail in its mission to reduce smoking on the global level.
COP9 provides the UK with a major opportunity to demonstrate its success in promoting harm reduction strategies to lessen the burden of smoking-related disease. Amongst the biggest beneficiaries of the UK’s input would be low to middle-income countries that have the highest smoking rates. Many of these countries, including India, have banned reduced-risk nicotine products outright. Opposing efforts to limit smokers’ access to harm reduction technologies and sharing research and empirical evidence should be key parts of the UK’s objectives with regard to COP9. This can be achieved by ensuring that harm reduction experts are among the UK’s delegation and working with other signatories who share or are sympathetic to the UK’s position.
The UK has wisely adopted the position of risk proportionate taxation with regards to e-cigarettes. Maintaining a wide price differential between reduced-risk products and combustible cigarettes is crucial to promoting tobacco harm reduction.
The importance of risk proportionate taxation is clearly demonstrated by two US studies. The first examined the effect of Minnesota’s 95 percent wholesale tax on e-cigarettes. “Our results suggest that in the sample period about 32,400 additional adult smokers would have quit smoking in Minnesota in the absence of the tax. If this tax were imposed on a national level about 1.8 million smokers would be deterred from quitting in a ten-year period,” wrote the study’s authors. The second study found that if the US introduced a $1.65 e-cigarette tax per ml of vaping liquid it would raise the proportion of adults who smoke cigarettes daily by around one percentage point, translating to 2.5 million extra daily smokers.
While the tax treatment of e-cigarettes in the UK is generally favorable there’s room for improvement when it comes to offerings such as heated tobacco products. The duty rate for heated tobacco is set at the same level as hand rolling tobacco, which is £234.65 per kilogram. While heated tobacco products do contain leaf tobacco, they are significantly less harmful than hand rolling tobacco. There’s evidence to suggest that users of hand rolling tobacco are less motivated to quit and engage in fewer attempts to quit than those who use manufactured cigarettes.
Given the relative risks of heated tobacco products it’s unreasonable for them to be taxed at the same rate as a combustible product. Reducing the duty on heated tobacco products would make them more competitive with hand rolled tobacco products and would provide a significant incentive for this portion of smokers to switch.