New York already enjoys the dubious honor of having the highest rate of illegal cigarette smuggling in the country. More than half of all cigarettes smoked in New York come from smuggled sources. The black market sales cost New York an estimated $1 billion dollars a year in tax revenue, according to the Tax Foundation.

Banning menthol cigarettes would put rocket boosters under the illicit tobacco market and reduce the state’s tax revenues. That’s what happened when Massachusetts banned flavored tobacco. One year after Massachusetts’ 2020 ban on menthol cigarettes was implemented, nearly 30 million fewer packs of cigarettes were sold in the state, Reason Foundation’s Jacob James Rich found. But, as smokers sought their preferred products elsewhere, 33 million additional cigarette packs were sold in bordering states than were sold the year before Massachusetts’ ban.

There’s no doubt the governor has been sold on good intentions and the virtues of prohibition. Advocates claim that menthol cigarettes are more addictive, easier for kids to start using, and harder for smokers to quit. But none of these claims are true.

Research shows menthol smokers tend to start smoking later in life and smoke fewer cigarettes per day than non-menthol smokers. States that have higher rates of adult menthol smoking relative to non-menthol smoking actually have lower youth smoking rates. Research from Vanderbilt University Medical Center, published in the Journal of the National Cancer Institute, found no statistically significant difference in successful quit rates between menthol and non-menthol smokers. There was also no difference in the quit rates between Black and white smokers.

Supporters of prohibition claim a menthol ban is needed to tackle smoking in the Black community because the majority of Black smokers choose menthol products. But the Black youth smoking rate in New York is just 4.2%, while the white youth smoking rate is 4.4%. For adults, white New Yorkers are the most likely to smoke at 12.9% compared to the 11.3% of Black New Yorkers who smoke. Given menthol and nonmenthol cigarettes are equally toxic, it’s odd that one should be singled out over the other. Gov. Hochul isn’t advocating for banning products preferred by the largest group of smokers in the state — white New Yorkers.

It’s also a sad irony that Hochul is pursuing this policy when New York City was where Eric Garner was pointlessly killed by police during an arrest for selling untaxed cigarettes in 2014. Last year, the mothers of Garner and Trayvon Martin, and George Floyd’s brother pleaded with the Biden administration not to ban menthol cigarettes nationwide.

Yet supporters of menthol prohibition frequently cloak the ban in the language of equity. It’s an eccentric argument to claim that banning sales of cigarettes favored by Black smokers while the preferred choice of white smokers remains legal is the most equitable policy when they smoke at similar rates. There are uncomfortable tinges of the government’s unjust sentencing differential that hurt minority communities by mandating harsh sentences for crack cocaine and lighter sentences for powder cocaine, which had disparate use rates but similar risks, just like menthol and nonmenthol cigarettes.

Few issues unite conservatives like Grover Norquist of Americans for Tax Reform with progressives like the Rev. Al Sharpton and the American Civil Liberties Union, but opposition to menthol bans is one of them. Whether viewed through the lens of individual choice or social justice, Hochul’s proposed prohibitions can be relied upon to unite a diverse coalition of opponents.

Gov. Hochul should abandon the proposed ban. Youth smoking is at its lowest rate in decades and has almost disappeared in the state. With safer nicotine alternatives making traditional smoking increasingly obsolete, public health can continue to improve without a menthol ban that would surely bring negative racial justice implications and usher in criminal punishments that would disproportionately impact New York’s minority communities.

A version of this column first appeared in the New York Daily News.

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Public polling indicates many American smokers say they want to quit using combustible cigarettes. Despite the existence of tobacco control policies and traditional cessation methods, 30.8 million adult smokers remain, many of whom have not tried to quit or have not quit successfully. For this population of smokers, a suite of safer nicotine alternatives such as e-cigarettes, nicotine pouches, snus, and heat-not-burn products may succeed in helping them quit where other policies have failed.

Traditional tobacco control strategies such as education, taxation, marketing restrictions, and bans on smoking in a growing list of public spaces have contributed to a gradual reduction in the smoking rate from its peak of around 40 percent in the mid-1960s to 12.5 percent today. Safer nicotine alternative products are a newer, yet crucial, component of a tobacco harm reduction strategy, giving those smokers who would not otherwise have quit a way to use nicotine without the smoke that may kill them. A substantial body of evidence demonstrates that these tools are more effective in helping smokers quit than traditional cessation methods, such as nicotine replacement therapies (NRTs), and are vastly less harmful to human health than combustible tobacco. 

To maximize these products’ potential to help improve public health while limiting youth access and uptake, Congress, the U.S. Food and Drug Administration (FDA), and the Centers for Disease Control and Prevention (CDC) must ensure consumers have access to these products at reasonable prices and are accurately informed about their risk relative to cigarettes. 

Correcting misperceptions

Millions of Americans have successfully switched from combustible cigarettes to safer nicotine alternatives. While the overall smoking rate has declined to a generational low, smoking remains disproportionately high among low-income communities, people without college degrees, and those with mental health problems.

A substantial barrier preventing greater uptake of safer alternatives to cigarettes is the widespread misperception among a majority of the public and physicians that these products are just as dangerous or more dangerous than combustible cigarettes.

For example, though the spate of lung injuries and deaths that occurred in 2019 were quickly linked to the proliferation of adulterated cannabis vapor products, public polling suggests a majority of adults attribute the outbreak to nicotine vapor products.

In Dec. 2022, a group of public health experts urged the CDC to correct rampant misinformation regarding the dangers of e-cigarettes. Speaking to the Associated Press in 2022, the Director of FDA’s Center of Tobacco Products (CTP) Dr. Brian King said there were widespread misperceptions around the use of e-cigarettes.

“I’m fully aware of the misperceptions that are out there and aren’t consistent with the known science,” King said. “We do know that e-cigarettes — as a general class — have markedly less risk than a combustible cigarette product.”

But, as of now, it appears the FDA has no plans to correct these misperceptions.

Congress can contribute to communicating clear and accurate information on the relative risks of noncombustible products and potential benefits for adult smokers who switch to these products. Unfortunately, the FDA and the CDC are currently falling short of this mission, and neither agency has outlined any plans to address the problem. It is the responsibility of Congress to hold both to account.

Reagan-Udall Foundation evaluation

After a series of missteps handling e-cigarette product applications, FDA Commissioner Robert Califf asked the Reagan-Udall Foundation (RUF) to evaluate the FDA’s tobacco program. RUF was established by Congress “to advance the mission of the FDA to modernize medical, veterinary, food, food ingredient, and cosmetic product development, accelerate innovation, and enhance product safety.”

In Dec. 2022, the Reagan-Udall panel delivered its verdict on FDA’s performance. The report found several failings at the FDA, including opacity and confusion regarding the agency’s refusal to authorize safer nicotine products. 

In 2009, Congress passed the Tobacco Control Act, which established a pathway for authorizing safer nicotine products, ensuring tobacco harm reduction could play some role in reducing smoking rates. But in practice, the process has created a functional barrier to entry for legitimate companies and products, costing vast sums of time and money per application and leaving applicants unsure of what materials they need to provide for a successful application. In the meantime, the vapor market, bereft of FDA-authorized options, has been flooded with illegitimate products in order to fill the vacuum.  

In particular, RUF’s report called on the FDA to define what is “appropriate for the protection of health,” a central factor in determining whether to authorize new products. The evaluation also called on the FDA to develop and implement a comprehensive plan for the Center of Tobacco Products’ goals and priorities, greater transparency, engagement with industry stakeholders, clarity on when FDA decisions prioritize public policy or political concerns rather than the strength of the underlying science, removing illicit products from the market, and simpler processes for authorizing certain novel products that may benefit individual and public health. Congress should closely monitor the FDA’s efforts to implement RUF’s recommendations and, if it refuses to do so, investigate why.   

Taxation

Research shows e-cigarettes are substitutes, not compliments to traditional cigarettes. There are good reasons to tax combustible cigarettes, such as recouping costs to the health care system attributable to smoking-related diseases and discouraging youth smoking. But since noncombustible nicotine products, like e-cigarettes and other reduced-risk products, present significantly less danger to consumers and offer a net benefit to public health if smokers switch from cigarettes, sound public policy dictates that these products should be taxed at a significantly lower rate than cigarettes, if at all. 

In the last Congress, there were attempts to introduce the first federal e-cigarette tax, which would’ve set the tax to be equivalent to the tax on cigarettes. According to modeling from Georgia State Univerity Professor Michael Pesko, the tax would have resulted in fewer adult e-cigarette users and an increase of 2.5 million more smokers than there would be otherwise. Taxing less harmful products at a level equal to or higher than the most deadly products provides a clear disincentive for smokers to switch, thus resulting in net harm to public health. Additional federal taxes on e-cigarettes and other harm reduction taxation tools would prevent a significant number of smokers from switching, harming public health, and should be resisted. 

Conclusion

Innovation presents promising opportunities to improve public health and support small businesses. While the economic benefits are secondary to the public health benefits, in 2019, The Washington Post reported that vape shops were the fastest-growing U.S. retail segment of the previous decade. Unfortunately, many of these stores have already been forced to shut their doors over the past three years in large part due to the flood of misinformation about these products and the byzantine regulatory process the FDA has yet to fix.

A sound regulatory framework for safer alternatives to cigarettes would ensure these harm reduction options are available to the consumers who need them at reasonable prices while still limiting the access young people have to them. Ensuring the FDA and the CDC are supporting, rather than hampering this public health objective is a sure way Congress can bear down on the public health toll of smoking. 

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The final report, which found FDA “struggled to function as a regulator in part due to some of its own policy choices,” likely made for uncomfortable reading at the agency.

Since 2009, all tobacco products have been regulated by the FDA. Products not on the market before Feb. 2007, like e-cigarettes, must undergo an expensive and time-consuming application process to be authorized for sale. Before they can be approved, each product must demonstrate to the FDA it is “appropriate for the protection of public health” for both users and non-users. For products that had already been on the market, the deadline to submit their applications was eventually set for Sept. 2020.

But the FDA denied the vast majority of e-cigarette applications, claiming they were of insufficient quality or failed to demonstrate a net public health benefit. As a result, most of the safer alternatives to cigarettes that were on the market prior to 2020 are now illegal in the United States. But the FDA’s lack of guidance to applicants, opacity in decision-making, and blanket denial of all products marketed using non-tobacco flavors left the agency exposed to litigation, with many suspecting the agency’s decisions are heavily influenced by anti-vaping politics rather than science.

Among the recommendations in the Reagan-Udall report was for the FDA to provide a clear definition and interpretation of “appropriate for the protection of public health” and transparency around political considerations and value judgments in the FDA’s decision-making.

During the evaluation, FDA staff complained to Reagan-Udall that decisions on product applications were prioritizing politics over science. The report also called for “more substantial engagement with stakeholders and the public.”

In this context, last week, the American Vapor Manufacturers Association (AVM), a trade organization representing the independent vapor industry, highlighted the FDA’s public calendar for last December. AVM found that FDA officials met with four organizations that are hostile to e-cigarettes as a tobacco harm reduction tool to discuss Reagan-Udall’s findings in the hours and days following its publication. These organizations include the Campaign for Tobacco-Free Kids, American Heart Association, American Lung Association, and the American Thoracic Society.

The FDA declined to comment on whether these meetings were held at its request. But Reason Foundation confirmed with the American Heart Association and the American Thoracic Society that these discussions were held at the agency’s request. The American Vapor Manufacturers’ Association announced that the head of the Center for Tobacco Products, Brian King, had agreed to meet with the FDA for a public dialogue on e-cigarettes, making it the sole group supportive of e-cigarettes as a harm reduction tool to have such a meeting to date.

“Dr. Califf’s rush to meet with four separate organizations dedicated to banning safer alternatives to smoking is emblematic of so many of the serious issues identified by the Reagan-Udall review,” said AVA’s Director of Legislative and Regulatory Gregory Conley. “Other centers at the FDA interact regularly and productively with the industries they regulate, but when it comes to nicotine products, FDA’s top priority is keeping activist groups happy.”

The select access granted to anti-vaping groups is particularly jarring given the FDA’s very different to another Reagan-Udall report—this one on its food program, which also found the agency to be woefully deficient. In that case, The New York Times reported:

The Food and Drug Administration’s food division has no clear leadership, avoids bold policy or enforcement actions, and fosters a culture that doesn’t adequately protect public health, according to a report issued on Tuesday by an agency-related group.

Experts with the group, the Reagan-Udall Foundation, which was asked to examine the food division after widespread criticism stemming from the infant formula crisis, concluded in the report that the division’s management structure and mission should be overhauled.

Dr. Robert Califf, the agency commissioner, released a statement Tuesday saying he would form a group to advise him on the findings and on how to put the recommendations in place. The infant formula crisis was the first major challenge that Dr. Califf confronted this year as commissioner, although the agency has also faced criticism over the regulation of vaping and tobacco products, which prompted a similar review of its tobacco division.

Immediately following the publication of the food report, the FDA held meetings with stakeholders, including campaign groups and the industry itself, notably food and beverage giant Nestlé.

Perhaps in response to AVM’s highlighting of the issue, Dr. Brian King, the director of FDA’s Center for Tobacco Products, agreed to a public discussion on Feb. 24, according to the American Vapor Manufacturers. While this engagement is welcome, the fact that the FDA’s first response to a critical report was to request private meetings with the chief supporters of the status quo inspires little confidence that the agency can adequately change and foster a marketplace conducive to the public health benefits that could come with a science-based tobacco harm reduction approach.

Sadly, it appears any positive changes in the FDA’s approach to safer alternatives to traditional cigarettes may need to come through the new Congress intervening and ensuring the agency takes heed of the very review the FDA commissioned itself.

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On August 28, 2020, California Gov. Gavin Newsom signed into law a ban on the sale of flavored tobacco products. California Senate Bill 793 bans menthol cigarettes, e-cigarettes in flavors other than tobacco, as well as oral tobacco products. Exceptions were made for hookah, premium cigars, and pipe tobacco. Retailers selling flavored tobacco products may be subject to a $250 fine for each sale. Proposition 31 on California’s November 2022 statewide ballot seeks to overturn that law, SB 793, so that the sale of flavored tobacco would remain legal in the state. 

Fiscal Impact

“Proposition 31 likely would reduce state tobacco tax revenues by an amount ranging from tens of millions of dollars per year to around $100 million annually,” according to the Legislative Analyst’s Office (LAO).

If a substantial number of smokers quit because of the ban, it could engender some savings to the state’s health care system. On the other hand, the LAO points out that if these smokers quit and live longer, it could increase the government’s health care costs. “Given the possibility of both savings and costs, the resulting long-term net impact on government health care costs is uncertain,” LAO concludes.

Arguments in Favor

Supporters of a ‘yes’ vote to uphold the law passed by the state legislature and signed by the governor include California Gov. Gavin Newsom, Campaign for Tobacco-Free Kids, American Cancer Society Action Network, California Teachers’ Association, and many others.

Proponents of prohibition argue flavors such as menthol in combustible cigarettes, sweet and fruit flavors in e-cigarettes, oral tobacco, and little cigars are targeted to and disproportionately impact young people and minorities.

In the case of menthol cigarettes, supporters of the law observe that around 85 percent of black smokers use a menthol cigarette, compared to a little more than a third of white smokers, with the tobacco industry gearing its marketing of menthol cigarettes toward black Americans. It’s also alleged that menthol cigarettes are especially appealing to young people because menthol acts as a cooling agent masking the harsh taste of burnt tobacco allowing new smokers to become hooked easier than they would if they tried a regular cigarette.

Regarding flavored e-cigarettes, the sweet flavors and fruit e-liquids are claimed to be responsible for the upswing in youth vaping that California and the rest of the country experienced beginning in 2017. Supporters of prohibition argue these flavors are hooking a new generation of kids on nicotine. Banning flavors, proponents claim, would help reduce the number of young people trying tobacco products and cause a substantial portion of adult smokers and vapers to quit nicotine for good.  

Arguments Opposed

The groups arguing for a ‘no’ vote on Prop. 31 include companies in the tobacco industry, the Howard Jarvis Taxpayers Association, and the Republican Party of California.

Opponents of the bans argue that the increase in the tobacco age to 21 in 2020 has already substantially reduced youth access to tobacco products. While the desire to protect youth may be well-intentioned, opponents say the laws would primarily affect adult tobacco users who enjoy flavors and argue that adults should have the right to choose whether to use these products just like with alcohol and marijuana.

They also say there is an unfairness to the legislation since hookah, pipe tobacco, and premium cigars are exempted.

The opponents warn that prohibition would have a negative financial impact on small businesses operating on tight margins. The ban would transfer flavored tobacco sales to the black market, which would mean not just a loss of tax revenue for California.

A ban would also entail criminal enforcement, which brings with it the possibility of increased targeting of minorities by law enforcement, opponents note. The ban on flavored e-cigarettes is also problematic from a health care standpoint because e-cigarettes are safer than combustible cigarettes and limiting access to these products could cause many vapers to relapse to smoking and prevent some smokers who would otherwise have switched from doing so, limiting tobacco harm reduction. 

Discussion

The claims made against menthol cigarettes in California mirror the arguments that were made to the Massachusetts legislature when it was considering a ban on flavored tobacco in 2019. To date, Massachusetts is the only state in the country to have implemented a comprehensive flavored tobacco ban.

According to a pre-print (not yet peer-reviewed) analysis by Reason Foundation Policy Analyst Jacob Rich, one year after the ban, menthol sales within Massachusetts did decline dramatically. But the sales of non-menthol cigarettes within Massachusetts increased substantially. There was also a dramatic rise in cigarette sales in the states bordering Massachusetts. The entire six-state region near Massachusetts reported a net increase in cigarette sales of 7.21 million packs compared to the year before the state ban came into effect. According to the Tax Foundation, the ban also cost Massachusetts $125 million in tax revenue in its first year.

When adult products are relegated to the illegal market consumers often respond by seeking out these products or substitutes on the black market, presenting opportunities for criminals to supply these goods as we’ve seen with alcohol and illegal drugs and sex work.

Supporters of a ‘yes’ vote on Prop. 31 are correct that black smokers, young people and adults, disproportionately use menthol cigarettes. But this obscures some important facts. According to the most recent data from the Youth Risk Behavior Surveillance System in 2017, California’s black youth have the lowest smoking rates of any group, while black adults have the highest. If menthol cigarettes are as appealing to youth as has been suggested it is unclear why youth who are most exposed to menthol have the lowest smoking rates. The data is however in accordance with a Reason Foundation study published in 2020 showing that states with higher menthol sales, such as California, have some of the lowest youth smoking rates in the country. According to the Centers for Disease Control and Prevention (CDC) most of the young people who do smoke, 61 percent, use nonmenthol cigarettes. While we do not have recent data for youth smoking rates in California, nationally, they’re at a record low of 1.5 percent. Considering California’s smoking rate historically underperforms the national average we should expect the state’s smoking rate to be even lower. 

While the ban purports to target only retailers, the reality is that prohibition creates a significant potential for menthol cigarette smuggling and black market activity. Given that menthol products are disproportionately popular among black smokers it’s reasonable to assume black communities could suffer from further unnecessary contact with law enforcement if menthols are banned. The American Civil Liberties Union (ACLU) and law enforcement organizations such as the National Organization of Black Law Enforcement Executives (NOBLE) are among the groups that have voiced concerns as it relates to a proposed national menthol ban by the Food and Drug Administration. Similar concerns would exist in California.

The other major target of the flavored tobacco ban is e-cigarettes. As the use of vaping products by young people rose from 2017 to 2019, it’s unsurprising that some legislators saw prohibition as an easy answer to the problem. But it is important to note that e-cigarettes are a much safer form of nicotine consumption than traditional combustible cigarettes and have helped many Americans quit smoking. Because e-cigarettes heat a liquid solution containing nicotine instead of burning tobacco the number and levels of harmful and potentially chemicals are substantially reduced.

The Royal College of Physicians reports that the risks of vaping are unlikely to exceed five percent of those of smoking. There’s also a growing body of evidence showing that e-cigarettes are more effective than traditional nicotine replacement therapies at helping smokers quit. While e-cigarette flavors are portrayed as being targeted at youth, most adult vapers trying to quit smoking use non-tobacco flavors. According to research conducted by Yale University’s Abigail Friedman, vapers using non-tobacco flavors are more likely to successfully quit smoking than those who don’t.

Banning e-cigarette flavors may have the unintended consequence of not just damaging the state’s vape stores, but could push some vapers back to smoking cigarettes. It could also reduce the number of smokers looking to transition to a safer alternative to cigarettes.

While there is limited evidence on the effects of e-cigarette flavor bans thus far, a recent study published in the journal Nicotine and Tobacco Research examining seven California cities that implemented flavored tobacco bans found no significant effect on the likelihood that youth would vape.  An earlier study published in 2018 concluded that a comprehensive tobacco flavor ban would reduce overall tobacco use, but there would be more cigarette smoking than the status quo. Fortunately, youth vaping has fallen by 60 percent since 2019, despite there being no federal prohibition of e-cigarette flavors. 

California’s voters have to decide whether banning flavored tobacco products is likely to achieve the intended public health benefits at minimal cost to taxpayers and social justice, or whether a path of using e-cigarettes and flavors as a harm reduction tool to reduce smoking in a regulated market can achieve similar outcomes without the unintended negative consequences we’ve witnessed with previous experiments in prohibition.

Voters’ guides for other propositions on California’s 2022 ballot.

The post California Proposition 31 (2022): Banning flavored tobacco products appeared first on Reason Foundation.

Fiscal Impact

According to the Colorado Secretary of State’s analysis, Initiative 122 is likely to have no meaningful impact on the state’s net revenue or costs.  

Proponents’ Arguments For

As with another of the alcohol initiatives slated for the 2022 ballot, Initiative 122, is backed by an issue committee called Wine in Grocery Stores. This group is funded primarily by delivery companies like DoorDash and Instacart and is also supported by Safeway and Target. Proponents argue that the measure would modernize alcohol sales in Colorado and improve consumer convenience.

Opponents’ Arguments Against

Opposition to allowing third-party delivery of alcohol has been limited and has come mainly from the committee, Keeping Colorado Local. This group is also opposed to the other two alcohol-related measures on the 2022 ballot, and they portray these measures as a bid from “billion-dollar, out-of-state corporations who want to come in and put the mom-and-pop small business out of business.” They fear that allowing non-liquor stores to offer home delivery will further harm the ability of liquor stores to compete in the market.

Discussion

With memories of COVID-19 lockdowns still fresh in voters’ minds, it may be tough to convince them that there are many downsides to allowing the home delivery of alcohol. During those lockdowns, Colorado was among the many states to temporarily liberalize alcohol laws, allowing bars and restaurants to sell alcohol to-go and deliver alcohol along with customers’ food orders; a measure the state legislature recently extended to July 2026.

Instead of using their own staff to make home deliveries, Initiative 122 would simply allow businesses already licensed to sell retail alcohol to do through third-party delivery services. While specific regulation of alcohol delivery differs by state, at least 15 states and Washington, DC, currently allow some form of home alcohol delivery through third-party services, like Instacart and Drizly.

In addition to the benefits to consumers, access to these specialized services could benefit grocery stores, particularly smaller ones that may not have their own fleet of delivery people. This is especially true if voters approve Initiative 121, also on Colorado’s 2022 ballot, which would allow grocers to sell wine in addition to beer.

Initiative 122 could also benefit small liquor stores, as well, who might be able to increase their capacity for deliveries throughout the state.

Finally, the Initiative would certainly be beneficial to residents and visitors to Colorado, particularly those accustomed to the on-demand alcohol delivery available in other states. 

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In 2016, Colorado passed a law that would incrementally phase in grocery store sales of full-strength beer, wine, and liquor, with all stores allowed to sell all alcoholic beverages by 2037. Currently, however, wine can only be purchased in licensed liquor stores. 

Colorado’s Initiative 121 on the November 2022 ballot would allow stores that are already licensed to sell retail beer to begin selling wine for off-premise consumption beginning in 2023. The measure would also allow these shops to submit an application to their local licensing authority in order to conduct wine tastings on-site. 

Fiscal Impact

Based on the analysis provided by the Colorado Secretary of State’s Office, Initiative 121 is not expected to meaningfully increase either state revenue or costs.  

Proponents’ Arguments For

Initiative 121 has been supported by third-party alcohol delivery companies, like DoorDash, and national grocery brands, like Target, organized under the issue committee Wine in Grocery Stores. They argue allowing grocery and convenience stores to sell wine, in addition to beer, would significantly increase convenience for shoppers who would no longer need to visit multiple locations to buy food, beer, and wine.  

Opponents’ Arguments Against

Local liquor shops, which lost their monopoly on retail sales of full-strength beer in 2016, claim that eliminating their monopoly on wine sales would cause up to 1,000 liquor stores around the state to close. As they argued prior to Colorado’s legalizing the sale of full-strength beer in grocery stores, opponents of the initiative claim that allowing grocery stores to sell wine would harm local wineries and favor large national brands. Others have raised concerns that allowing wine sales in local grocery stores might increase underage drinking. 

Discussion

Colorado’s experience with the legalization of the sale of full-strength beer in grocery stores has been largely positive. Though the move decreased liquor store beer sales volume, a 2020 study by the Research Institute at Colorado State University found that craft brewers benefited from the move, which stimulated interest in and demand for beer relative to other alcoholic beverages. Moreover, there is no evidence that allowing beer sales in grocery stores have had any meaningful effect on underage drinking.

Local liquor store owners’ fears are understandable. Removing their monopoly and allowing other shops to sell wine would potentially decrease their own sales. But, importantly, it would also significantly increase consumers’ choices and convenience, reducing the number of locations shoppers have to visit, and likely reducing the prices of the more popular brands due to increased competition. If this initiative passes and is enacted, liquor stores could respond in a variety of ways, including by competing with grocery stores by offering customers more knowledgeable staff to assist shoppers and by stocking the hyper-local and specialty brands their larger competitors may not offer.

The post Colorado Initiative 121 (2022): Sales of wine in grocery stores appeared first on Reason Foundation.

Colorado Initiative 96 on the November 2022 ballot would incrementally raise the number of retail liquor store licenses an individual may own or hold to be equal to the number of licenses for off-premise alcohol sales that could be owned or held by drug and grocery stores in the state.

Under Colorado’s current law, an individual may hold only three retail liquor store licenses across the state, increasing to a maximum of four after 2027. Liquor-licensed drug stores, on the other hand, can hold up to eight licenses, but that number will increase to 13 in 2027, 20 by 2032, and be unlimited after 2037.

Grocery stores, which are currently restricted to selling beer only, can have a maximum of 20 licenses for alcohol sales, until 2037 when the maximum number will be unlimited.

Initiative 96 seeks to create parity in licensing between businesses that sell alcohol. If approved, the measure would allow liquor stores to hold up to eight licenses immediately, rising to 13 in 2027, 20 in 2032, and an unlimited number after 2037.

Fiscal Impact

According to the Colorado Secretary of State, Initiative 96 is expected to only minimally impact state finances. Increased licenses would slightly increase revenue through application and renewal fees, as well as slightly increase compliance costs for the state.

Proponents’ Arguments in Favor

Proponents of Initiative 96 argue that the state’s archaic restrictions on liquor licenses have unfairly blocked large liquor store retailers from the state, denying Coloradans the convenience, choices, and prices such chains could offer.

They also argue that increasing the maximum number of licenses and locations would help local liquor stores better compete with grocery and drug store alcohol sales, particularly if voters approve Colorado Initiative 121, also on the 2022 ballot, which would allow non-liquor stores to sell wine, in addition to beer.

The committee backing the measure, the Coloradans for Consumer Choice and Retail Fairness, has been largely funded by David and Robert Trone, the founders of Total Wine and More, raising $2.2 million for the Initiative, most of which was spent collecting signatures to qualify for the ballot. 

Opponents Arguments Against

Opposition to Initiative 96 has come primarily from the Colorado Licensed Beverage Association, a trade group representing independent liquor stores in the state, which formed a committee group named Keeping Colorado Local. This group is opposed to all three of the alcohol measures on Colorado’s 2022 ballot. They oppose Initiative 96 because it would open the state’s doors to large national chain brands, like Total Wine, potentially making it harder for local liquor stores to compete. 

Discussion

The competition faced by local liquor shops in Colorado is going to increase in the near future, no matter what voters decide this November, with current law set to vastly increase the number of chain grocery and liquor stores selling alcohol.

Though small liquor store owners are understandably worried about opening the state’s doors to larger, nationally-recognized retailers, like Total Wine, the smaller stores could find underserved markets and compete in areas like customer service, such as offering more knowledgeable employees to assist customers and stocking products larger chains may not. The iniative would also likely benefit consumers, increasing the variety of products available and reducing prices due to the increased competition.

The post Colorado Initiative 96 (2022): Concerning liquor licenses appeared first on Reason Foundation.

• Removing 95 percent or more of the nicotine from cigarettes.
• Slashing the number of retailers that can sell tobacco by 90-to-95 percent.
• Criminalizing the sale of tobacco to people born in 2009 or later.

While yet to be passed into law, the New Zealand policy is under consultation and will no doubt be the subject of intense discussion among stakeholders, policymakers, and the general public. 

The plan’s call to reduce the amount of nicotine in cigarettes by more than 95 percent is not a simple product reformulation—it amounts to a prohibition on cigarettes in New Zealand. The New Zealand government’s hope is that drastically reducing nicotine in cigarettes will prevent young people from starting to smoke and encourage a large slice of current adult smokers to quit nicotine or switch to safer alternatives like e-cigarettes. 

Some evidence from small trials suggests smokers are more likely to quit smoking or reduce their cigarette intake when using very low-nicotine cigarettes. However, one of the most prominent trials published in the New England Journal of Medicine in 2015 showed that more than 70 percent of those assigned to use low-nicotine cigarettes broke the rules and smoked regular cigarettes during the study period. 

Some of these studies on reducing the amount of nicotine in cigarettes found that vulnerable populations, like individuals with psychiatric or mood disorders, those suffering from opioid use disorders, and low-income women showed no difference in quit rates when compared to regular smokers. 

Speaking to The New York Times in reference to a similar proposal to reduce the amount of nicotine in cigarettes in the United States, Lynn T. Kozlowski, a tobacco control expert from the University at Buffalo, urged caution:

Lynn T. Kozlowski, a tobacco researcher at the University at Buffalo who has contributed to four Surgeon General reports on smoking since 1981, said nicotine was a highly addictive drug, with a stranglehold on users that could rival cocaine and heroin, and that the F.D.A. needed to consider how a sweeping decrease of nicotine in cigarettes would affect smoker behavior.

“What scares me is a national experiment with the very low nicotine cigarette that is done without some testing in the real world,” he said. The studies many experts cite when promoting a 95 percent drop in nicotine levels relied upon paid participants, he noted, adding that some of them secretly smoked their own brands at the same time that researchers were plying them with low-nicotine cigarettes.

When it comes to New Zealand’s plan to restrict the number of retail outlets that can sell cigarettes, the only country New Zealand can point to with a comparable policy is Hungary. In 2013, Hungary cut the number of outlets in the country allowed to sell tobacco by 83 percent. A 2020 study published in Tobacco Control examining tobacco retail licensing systems in Europe found there is “little empirical evidence for the effect of tobacco licensing on smoking behaviors.” And, as of 2019, Hungary’s smoking rate, 19.3 percent, remained above the European Union average of 18.4. 

The untested interventions being pursued in New Zealand also risk severe unintended consequences, many of which will fall most heavily on the country’s indigenous Māori population. Māori smoking rates are elevated compared to the rest of New Zealand’s population. It is a pattern not unique to New Zealand. Groups with fewer educational opportunities and lower incomes are far more likely to smoke. This is important because one of the main goals and arguments for the current tobacco control plan is to narrow health inequities within New Zealand’s population. 

Of course, with prohibition, there will be a huge incentive for smugglers to import cigarettes into the country, already a major problem when it comes to evading tobacco tax. There will also be an incentive for entrepreneurs to find ways to add nicotine to cigarettes. Because Māori have higher smoking rates, we can reasonably expect much of the illicit market activity related to cigarettes to be concentrated in Māori communities. 

The government will have to answer some tough questions if these policies are to come into effect. For example, what will the criminal penalties be for the sale or trade of these cigarettes? Will the possession of any or large amounts of full nicotine cigarettes be criminalized? 

Criminalizing the conventional tobacco market will likely increase the already substantial inequities in New Zealand’s criminal justice system. New Zealand’s incarceration rate, 170 per 100,000, is well above the Organization for Economic Co-operation and Development average of 147.

Māori are 5.7 times more likely to have a police interaction than other New Zealanders. Though Māori account for just 16 percent of the country’s population, they make up 51 percent of New Zealand’s prisoners. Māori are also more likely to be handcuffed, pepper sprayed, arrested, convicted, sentenced, and imprisoned, according to a 2017 report from the New Zealand police.

The government’s regulatory impact statement concedes that it does not “consider compliance and enforcement, including any offenses and penalties.” Fortunately, New Zealand has begun to accommodate safer nicotine alternatives like e-cigarettes, which have helped many New Zealanders quit smoking. 

Instead of launching a new experiment in prohibition, New Zealand should inform cigarette smokers about the potential health benefits of switching to safer alternatives and ensure greater Māori access to smoking cessation services.

The post The potential consequences of New Zealand’s plan to be smoke-free appeared first on Reason Foundation.

Dr. Robert Califf
Commissioner, Food and Drug Administration
10903 New Hampshire Avenue
Silver Spring, MD 20993
RE: Docket No. FDA-2021-N-1349 Tobacco Product Standard for Menthol in Cigarettes

Dear Dr. Califf:

Reason Foundation is grateful for the opportunity to submit comments on the proposed rule to prohibit the use of menthol as a characterizing flavor in cigarettes. Reason Foundation’s nonpartisan public policy research promotes choice, competition, and a dynamic market economy as the foundation for human dignity and progress. Reason produces rigorous, peer-reviewed research and directly engages the policy process, seeking strategies that emphasize cooperation, flexibility, local knowledge, transparency, accountability, and results. 

The available evidence suggests prohibition of menthol cigarettes will not present significant public health benefits to the population as a whole and will produce a suite of negative consequences undermining the FDA’s goals. While studied for decades, the evidence is either conflicted or directly contrary as to whether menthol cigarettes pose greater risks for smoking initiation, progression to regular smoking, increased dependence, and reduced cessation, particularly among African Americans, compared to non-menthol cigarettes. 

The FDA has not sufficiently considered the effectiveness of menthol bans and tobacco prohibitions from other jurisdictions, the severe limitations on and public misperceptions of safer alternatives such as e-cigarettes, or the unintended consequences of possible increased cigarette consumption among those menthol smokers who switch to a non-menthol product.

The FDA has also not accounted for the extremely low levels of youth cigarette use, for which menthol remains the least favored option. Furthermore, such a prohibition will result in a host of unintended consequences, including increased tobacco smuggling, burdens on law enforcement, and more frequent interactions between law enforcement and minority communities. 

To read the full published comment, please click here or here (.pdf).

The post Public Comment: Menthol prohibition would come with negative consequences appeared first on Reason Foundation.

Whether e-cigarettes are safer than combustible cigarettes is not in doubt. The FDA acknowledged as much when it authorized the Vuse e-cigarette product in 2021 and claims it recognizes the role these safer nicotine alternatives can play in reducing smoking. But banning Juul shows just how threadbare the FDA’s commitment to tobacco harm reduction really is.

For products like Juul to be authorized by the FDA, they need to demonstrate they are a public health benefit to the population as a whole. In its denial of Juul’s application, the FDA says it “lacked sufficient evidence regarding the toxicological profile of the products to demonstrate that marketing of the products would be appropriate for the protection of the public health.”

However, the agency adds: “To date, the FDA has not received clinical information to suggest an immediate hazard associated with the use of the JUUL device or JUULpods.”

The FDA’s Juul denial makes a mockery of the claim it’s evaluating science in the best interests of public health. E-cigarettes aren’t just safer than combustible cigarettes, they’re more effective in helping smokers quit than FDA-approved therapies like nicotine gum and patches. A study published in the New England Journal of Medicine found e-cigarettes to be twice as effective as traditional nicotine replacement therapies.

The decision also punctures a hole in the logic of the FDA’s recently announced policy to reduce nicotine levels in cigarettes to minimally or non-addictive levels. Critics of the policy have said that smokers will simply smoke more cigarettes during the day to make up for the decrease in nicotine content. The FDA argues, “if an acceptable legal alternative exists, there will be little or no incentive for consumers to attempt to subvert it.” But by banning the most popular e-cigarette among adults, the agency’s commitment to transitioning smokers to safer alternatives rings hollow.

Anti-vaping campaigners and politicians continue to blame the upsurge in youth vaping that occurred from 2017 to 2019 on Juul. But the FDA should not be swayed by this public criticism. This is especially important considering Juul complied with nearly every request made by critics including pulling its original marketing campaigns in 2016, voluntarily removing all of its non-tobacco and menthol flavors from the market in 2019, and supporting an increase in the tobacco age from 18 to 21.

While Juul is still popular with adult vapers, it is no longer the most popular product among youth who vape, a number that has collapsed in the past two years by almost 60%. According to the latest National Youth Tobacco Survey, 89% of youth don’t vape and 95% don’t vape frequently.

Furthermore, Juul’s application for approval by the FDA provided ample evidence of the benefits of switching from cigarettes to Juul. The application, filed in 2020, cost $100 million and was hundreds of thousands of pages long. Juul is appealing the ban and The Wall Street Journal reports:

In court filings Tuesday, Juul said the agency overlooked more than 6,000 pages of data that the company had submitted to the FDA on the aerosols that users inhale. Juul also said the agency failed to consider the totality of Juul’s evidence, which the company said established that the public-health benefits of Juul products significantly outweighed the potential risks.

“FDA’s order acknowledged that ‘exposure to carcinogens and other toxicants present in cigarette smoke were greatly reduced with exclusive use’ of Juul products compared with combustible cigarettes,” Juul said in court documents.

In the absence of successful litigation or the authorization of Juul’s next-generation products, there is little doubt some Juul users will return to smoking, and a portion of smokers who would have transitioned to Juul will continue to light up.

The FDA’s decision creates a policy environment where the most dangerous nicotine products are legal and available while selling one of the safest and most effective products for reducing smoking will be criminalized.

The great public health scholar Michael Russell said, “people smoke for nicotine but they die from the tar.”

The Biden administration would do well to remember those words if its goal is to save lives from smoking rather than make nicotine the target of a new war on drugs.

A version of this commentary first appeared in the New York Daily News.

The post FDA’s Juul ban threatens harm reduction progress appeared first on Reason Foundation.

The FDA makes three claims as to why menthol is uniquely dangerous. First, FDA contends menthols are especially attractive to kids. Second, the agency suggests menthol prohibition will increase the rate of people quitting smoking among current menthol smokers, who it says are more addicted than regular smokers. Third, FDA asserts the menthol ban will narrow health disparities, particularly among communities of color since 85 percent of black smokers use menthol products.

Unfortunately, none of these claims about the proposed menthol ban hold up. The latest data from the Centers for Disease Control and Prevention’s National Youth Tobacco Survey survey of U.S. middle school (grades 6–8) and high school (grades 9–12) students show only 1.5 percent of young people smoked at least once in the past month and the majority of these youth, 61.2 percent, used a non-menthol cigarette. The percentage of American youth who smoke regularly is just 0.28 percent. Essentially, youth smoking in the United States has nearly entirely been eliminated.

Thus, the FDA’s claims that hundreds of thousands of lives will be saved by cutting off the next generation of smokers are decades out of date. It is also difficult to justify the FDA’s assertion that menthol is more addictive and harder to quit than non-flavored cigarettes. One week before the FDA’s announcement, research from Vanderbilt University Medical Center showed quit rates for menthol and non-menthol smokers were indistinguishable, with no significant difference between black and white smokers.

If the ban is supposed to get adult menthol smokers to quit, the results from similar prohibitions are not encouraging. From 2015 to 2018, menthols were banned across Canada, where menthol sales were just five percent of the market. One study on the ban found that 78.6 percent of menthol smokers still smoked after the ban, with 19.5 percent continuing to use menthol. Worse still, compared to regular smokers, the study found that “menthol smokers did not differ significantly from non-menthol in quit success” between the study’s baseline and follow-up. 

Before the European Union banned menthol cigarettes, Poland had the largest menthol market of all member states, at 28 percent. A preprint evaluation of the Polish experience finds there has been no statistically significant reduction in cigarette sales in Poland after the menthol ban.

The only U.S. state to have banned menthols is Massachusetts. Menthol trafficking in bordering states exploded after the ban, with Massachusetts and its bordering states experiencing an increase in cigarette sales of 1.28 percent. There was also a significant uptick in non-menthol cigarette purchases. 

The most common response to menthol bans is switching to equally dangerous regular cigarettes, buying illicit menthol, or using devices to give non-menthol cigarettes a menthol taste. Because of these substitution effects, the alleged health benefits of prohibition are unlikely to materialize. According to the American Cancer Society, disparities amongst smokers have already narrowed significantly because young black people have been less likely to start smoking than their white peers in.

The FDA insists it will not be involved in any enforcement of a menthol ban when it comes to individual consumers, but federal agencies will need to be used to stop the flow of menthol cigarettes from abroad. Every state penalizes the sale of untaxed cigarettes with punishments ranging from hefty fines to significant jail time. With around 18 million consumers of menthol cigarettes in America and billions of dollars in revenue at stake, believing criminal networks will not look to make money by filling customer demand for menthol products is naive at best.

There is an alternative that would cut smoking rates without the costs of prohibition. The Biden administration has committed itself to a policy of harm reduction when it comes to tackling the opioid epidemic. Extending this logic to smokers who want to quit would avoid the specter of cops hassling people selling Newports or loose cigarettes, which tragically led to the death of Eric Garner in 2014. 

Most Americans are unaware or misinformed about safer nicotine alternatives like vapes, nicotine pouches, and heat-not-burn products. According to the Health Information National Trends Survey, just 2.6 percent of adults correctly believe e-cigarettes are much less harmful than traditional cigarettes. E-cigarettes are more effective than nicotine replacement therapies at helping smokers quit and because there is no burning tobacco in these products, they are also substantially safer than traditional cigarettes. 

Promoting innovation and harm reduction would likely be more effective in achieving public health goals without increasing the carceral state or the unnecessary targeting of minority communities that the FDA’s proposed menthol cigarette ban will likely deliver.

The post The FDA’s proposed ban on menthol cigarettes is based on faulty claims appeared first on Reason Foundation.

Here are some of the common questions about banning menthol cigarettes, the supposed evidence in support of a menthol cigarette ban, and a ban’s possible consequences on public health and minority communities.

Who smokes menthol cigarettes?

According to the FDA, there are nearly 18.6 million American menthol smokers. The FDA says nearly 85 percent of all black smokers use menthol-flavored products, compared to around 30 percent of white smokers who use menthol cigarettes. 

Are menthol cigarettes more dangerous than non-menthols?

Menthol and non-menthol cigarettes are both addictive and can cause smoking-related diseases, but non-menthol cigarettes are not safer than their menthol counterparts. Research published in the Journal of the National Cancer Institute found menthol smokers were somewhat less likely to develop lung cancer than non-menthol smokers. The report found:

“Black men are known to have a higher incidence of lung cancer and are more likely to smoke mentholated cigarettes compared with white men,” said Vanderbilt-Ingram Cancer Center’s William Blot, Ph.D. “It has been hypothesized that menthol in cigarettes influences smoking behavior, perhaps increasing dependency or adversely affecting the biology of the lung. However, our large study found no evidence to support those theories.”

…Among people smoking 20 or more cigarettes a day, menthol smokers were approximately 12 times more likely to develop lung cancer than never-smokers, while non-menthol smokers were about 21 times more likely to have the disease. The differences were mirrored for lung cancer death rates and were found to be statistically significant.

The researchers also found that both white and black menthol smokers reported smoking fewer cigarettes per day than non-menthol smokers. When it comes to the likelihood of quitting smoking, there was no significant difference between menthol and non-menthol smokers.

The authors said the findings suggest mentholated cigarettes are no more, and perhaps less, harmful than non-mentholated cigarettes.

The difference in lung cancer development may be because menthol smokers tend to smoke fewer cigarettes per day and start smoking later in life. If menthols are prohibited, those cigarettes left on the market may be considered safer by consumers, with a possible increase in the number of cigarettes smoked by those menthol smokers who switch to non-menthols. 

Are menthol cigarettes more addictive than non-menthols?

On standard dependency measures, such as the number of cigarettes smoked per day and the time to the first cigarette, menthol smokers are not more dependent than non-menthol smokers. There is also no significant difference in the quit rates between menthol and non-menthol smokers. The most recent evidence published in the Journal of the National Cancer Institute shows that quit rates among menthol and non-menthol smokers are indistinguishable. The study found no significant difference in quit rates between black and white smokers.

Are menthol cigarettes more popular among kids than non-menthols?

Fortunately, youth smoking rates in the United States are at a record low of 1.5 percent, according to the Centers for Disease Control and Prevention. Of that small percentage, more than 60 percent of middle school and high school students who are defined as current smokers use non-menthol cigarettes. Just 0.6 percent of middle and high school students used a menthol cigarette in the past 30 days.

States with the highest menthol consumption rates also have the lowest youth smoking rates. It is true that of the small group of African American middle and high school students who do smoke, most smoke menthol products. However, it should also be noted that black youth have lower smoking rates than other groups of young people, including non-Hispanic whites and Hispanics. 

Have menthol bans been implemented elsewhere? Were they successful?

Supporters of menthol prohibition have been disappointed by lackluster results in other jurisdictions that have banned the products, including Canada, the European Union, and Massachusetts. The most common result of menthol prohibition has been for the majority of menthol smokers to switch to equally dangerous non-menthol cigarettes, continue to buy illicit menthol, or use devices to flavor non-menthol cigarettes. As I noted in a recent piece:

The most optimistic case study for the prohibition of menthols comes from Canada. According to a study of Canada’s menthol ban, while the vast majority continued to smoke after the ban was implemented, a significant portion reported quitting. The study found “59.1 percent of pre-ban menthol smokers switched to non-menthol cigarettes; 21.5 percent quit smoking and 19.5 percent still smoked menthols, primarily purchased from First Nations reserves.” These results might seem somewhat underwhelming but are still impactful. But when we compare the menthol smokers to non-menthol smokers, we see a lackluster result. 

According to the authors of the study, menthol smokers increased their attempts to quit smoking, relative to non-menthol smokers by 9.7 percent. However, overall, just 7.5 percent more menthol smokers quit compared to non-menthol…

The European Union, with its 27 member states and a population of about 450 million, is the largest region to have banned menthol cigarettes. Menthols were already unpopular in Europe. Poland had the largest menthol market in the European Union at 28 percent, closest to America’s market at 36 percent. A preprint study funded by the Norwegian Cancer Society in partnership with the Polish Health Ministry found no statistically significant change in cigarette sales after the ban.

How would the prohibition of menthols likely be enforced?

The FDA says menthol prohibition would be enforced only against “manufacturers, distributors, wholesalers, importers, and retailers.” However, any implication that a ban would only affect big tobacco companies and established retail stores is misconceived. There are already laws on the books that would impose severe penalties on individuals who sell menthols post-prohibition. Anyone selling, importing, or distributing menthol cigarettes would be committing a crime and could land themselves in prison. Thanks to the Federal Cigarette Contraband Trafficking Act (CCTA), smuggling menthol cigarettes across state lines could result in five years in prison. Every state also has laws on the books that criminalize the unlicensed sale and distribution of tobacco products.

Additionally, the possession of untaxed cigarettes is already illegal in 36 states and the District of Columbia. States and localities could enact other laws to clamp down on any increase in the illicit tobacco trade. 

Why are some civil liberties and criminal justice reform groups concerned the ban would negatively impact minority communities?

Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union, said a ban on menthol cigarettes would disproportionately impact minority communities:

“Time and time again, we see encounters with police over minor offenses — for Daunte Wright it was expired tags, for George Floyd it was using a counterfeit bill, for Eric Garner it was selling loose cigarettes — result in a killing. There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”

A ban on menthol cigarettes should be expected to hurt communities of color, spur the growth of black markets for methol products, lead to more policing and incarceration, and undermine a variety of criminal justice reforms that cities and states have made in recent years.

Rather than prohibition, what is an alternative harm reduction strategy?

While smoking rates have gradually declined over the last few decades, 12.5 percent of American adults continue to smoke despite the widely known dangers and many smoking cessation resources available. One reason why so many Americans keep smoking traditional cigarettes is that public health officials have mostly failed to let them know that nicotine alternatives like e-cigarettes are substantially safer than combustible cigarettes. 

According to the Health Information National Trends Survey, just 2.6 percent of adults correctly believe e-cigarettes are much less harmful than traditional cigarettes. Since there is no burning tobacco in e-cigarette products, they are substantially safer than traditional cigarettes. Research also shows e-cigarettes are far more effective than nicotine replacement therapies at helping smokers quit.

Rather than resorting to the failed prohibitionist policies of the past, the FDA and Biden administration should apply the harm reduction model to tobacco policy. The federal government could focus on educating the public about safer nicotine delivery products, and the latest smoking cessation products available as part of a pragmatic approach to improving public health as people choose better options than conventional cigarettes. The harm reduction model has been successfully used by governments to reduce sexually transmitted diseases, reduce overdose deaths and treat drug addiction. In the case of smoking and menthols, a harm reduction strategy would be far more effective in reducing smoking than banning menthols.

The post Frequently asked questions about the FDA’s ban on menthol cigarettes appeared first on Reason Foundation.

Case Studies

The most optimistic case study for the prohibition of menthols comes from Canada. According to a study of Canada’s menthol ban, while the vast majority continued to smoke after the ban was implemented, a significant portion reported quitting. The study found “59.1 percent of pre-ban menthol smokers switched to non-menthol cigarettes; 21.5 percent quit smoking and 19.5 percent still smoked menthols, primarily purchased from First Nations reserves.” These results might seem somewhat underwhelming but are still impactful. But when we compare the menthol smokers to non-menthol smokers, we see a lackluster result. 

According to the authors of the study, menthol smokers increased their attempts to quit smoking, relative to non-menthol smokers by 9.7 percent. However, overall, just 7.5 percent more menthol smokers quit compared to non-menthol. It is also unclear whether menthol smokers from before the ban had more quit attempts than regular smokers.

The study notes that between its baseline and follow-up, “[M]enthol smokers did not differ significantly from non-menthol in quit success.” Compared to the U.S., menthol was also just a small part of the Canadian cigarette market, accounting for five percent of Canadian sales compared to menthol products accounting for roughly one-third of cigarette sales in the United States.  

The European Union, with its 27 member states and a population of about 450 million, is the largest region to have banned menthol cigarettes. Menthols were already unpopular in Europe. Poland had the largest menthol market in the European Union at 28 percent, closest to America’s market at 36 percent. A preprint study funded by the Norwegian Cancer Society in partnership with the Polish Health Ministry found no statistically significant change in cigarette sales after the ban. While the EU suffers from illicit trade in menthol cigarettes and most smokers switched to equally unhealthy non-menthol cigarettes, entrepreneurs have also stepped in to offer smokers ways to adulterate regular cigarettes to give them a menthol flavor.

After the ban in the EU, a study of young Danish smokers found that many were still smoking menthols, 20 percent after the ban compared to 29 percent before. One reason is this proliferation of flavor accessories that can effectively give a menthol flavor to non-menthol cigarettes. Alex Liber, the author of the previously mentioned Polish study and a continued supporter of a menthol product ban said of the Danish research: “My takeaway is that any government that moves forward with a menthol ban should temper its expectations on immediate consumption declines. Tobacco companies will protect their cigarette cash cow.” 

Massachusetts is the only state in the US to have implemented a ban on flavored tobacco products as of this writing. One result of Massachusetts’ ban has been a dramatic increase in purchases of non-menthol cigarettes and an increase in the sales of menthol cigarettes in New Hampshire and other neighboring states. According to the Tax Foundation, the ban cost Massachusetts $125 million in lost tax revenue in its first fiscal year. In addition, a forthcoming Reason Foundation analysis finds the region in and around Massachusetts experienced a net increase in cigarette sales of 7.2 million packs.

In the aggregate, the experience of menthol bans in the real world, as opposed to forecasts about them, is that the bans have minimal effects on tobacco consumption but do engender unintended consequences, even in markets where menthol is relatively unpopular. 

A Harm Reduction Alternative to Bans

Banning menthol cigarettes, a product used by up to 18 million Americans, is a radical policy with significant implications for the criminal justice system and personal autonomy. It is worth examining whether less intrusive, costly, or iniquitous measures can help those who wish to quit smoking.

Smoking rates have gradually declined over the last few decades. And they have declined faster since safer nicotine alternatives like e-cigarettes were introduced. 

One reason why so many Americans keep smoking traditional cigarettes is that public health officials have mostly failed to let them know that nicotine alternatives like e-cigarettes are substantially safer than combustible cigarettes. According to the Health Information National Trends Survey, just 2.6 percent of adults correctly believe e-cigarettes are much less harmful than traditional cigarettes.

Since there is no burning tobacco in e-cigarette products, they are substantially safer than traditional cigarettes. Research also shows e-cigarettes are far more effective than nicotine replacement therapies at helping smokers quit.

However, thus far, the FDA has only authorized a handful of e-cigarette products as “appropriate for the protection of public health.” But the most popular vaping products among consumers have been banned or are in regulatory limbo.

The FDA has also taken no action to correct public misperceptions around e-cigarettes or other products like nicotine pouches or snus. Correcting these misperceptions and ensuring a wide range of appealing alternatives to cigarettes could help rapidly decrease smoking rates without imposing the negative consequences and costs of prohibition.

Rather than resorting to the failed policies of the past, the FDA and the Biden administration should apply the harm reduction model to tobacco policy. Educating the public and taking a harm reduction approach has been successful in the fields of sexual health and drug addiction, and it would be far more effective in reducing smoking than banning menthols.

The post Rather than banning menthols, FDA should embrace harm reduction appeared first on Reason Foundation.

Civil rights organizations and criminal justice reformers have been voicing concerns that racial and ethnic minorities will bear the brunt of any potential enforcement action. These fears are well warranted. While black and white smoking rates are similar, black smokers are far more likely to use menthol products. Roughly 85 percent of black smokers use menthol products.

Making menthol cigarettes illegal while leaving the cigarettes favored by white smokers legal is sadly reminiscent of the government’s disparate treatment of, and sentencing rules for, crack cocaine users compared to powder cocaine users. At one point, the distribution of five grams of crack cocaine, which was found more frequently in black communities, carried a minimum five-year federal prison sentence. In contrast, it took the distribution of 100 times that—500 grams of powder cocaine, which was favored in white communities—to trigger the same five-year mandatory sentence. Now, the FDA seems curiously poised to ban the specific cigarettes favored by black smokers while doing nothing about the cigarettes preferred by white smokers.

Last year, Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union, said a ban on menthol cigarettes would disproportionately impact minority communities:

“Time and time again, we see encounters with police over minor offenses — for Daunte Wright it was expired tags, for George Floyd it was using a counterfeit bill, for Eric Garner it was selling loose cigarettes — result in a killing. There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”  

Unfortunately, these critiques correctly note that if an illicit market for menthol cigarettes grows as the result of a federal ban, the black market and its impacts are likely to be concentrated in low-income, minority neighborhoods that already suffer from higher crime and policing. And the fact that the FDA itself would not be enforcing the ban on possession or use is a true but trivial point. At no time during alcohol prohibition were individual drinkers criminalized. But organized crime ran rampant, disputes over product and territory abounded, and individual small producers and sellers were prosecuted.

There are currently between 12 million and 18 million menthol smokers in America. If the FDA implements a ban on menthols, it is ludicrous to suggest that organized crime won’t seek to serve this market, especially as menthols remain legal in most of the world. Federal law enforcement agencies would be tasked with interdicting flows of illicit tobacco from abroad.

The U.S. already suffers from some crime spurred by today’s high tobacco taxes, even without prohibition. More than 50 percent of cigarettes sold in New York, for example, come from out of state due in part to the state’s high tax rates. In Massachusetts, which is the only state to have already banned flavored tobacco products, smugglers are being arrested with hundreds of thousands of dollars worth of contraband in their possessions.

There are already laws on the books that will impose severe penalties on those who sell menthols post-prohibition. If the FDA’s rule is enacted, anyone selling, importing, or distributing menthol cigarettes would be committing a crime and could land themselves in prison for a year for each offense. Thanks to the Federal Cigarette Contraband Trafficking Act (CCTA), smuggling menthol cigarettes across state lines could result in five years in prison. Every state also has laws on the books that criminalize the unlicensed sale and distribution of tobacco products. The possession of untaxed cigarettes is already illegal in 36 states and the District of Columbia.

Law enforcement officers frequently pursue minor infractions, such as selling loose cigarettes, as justification for intrusive searches that could lead to more significant busts, such as those for guns or drugs. These searches problematically increase the number of police interactions with the public, especially with minority men. As the ACLU and criminal justice reformers correctly note, Eric Garner was killed by New York City police in an incident that was initially sparked by law enforcement’s overreaction to his minor action of selling loose cigarettes. 

“Giving police officers a reason to detain and engage black smokers to find out where they purchased their menthol cigarettes could lead to encounters that are likely to escalate to the unnecessary use of force and arrests,” writes Major Neill Franklin, a law enforcement veteran of the Maryland State Police and Baltimore Police Department. 

America’s illicit tobacco market is already a multibillion-dollar industry, with profits from the illegal trade funneled into organized crime. A U.S. Department of State report revealed tobacco smuggling to be a ‘low-risk, high-reward’ source of funding for terrorist groups that also drains potential tax revenue from federal and state coffers.

The country has been making a lot of progress on some of these issues. Marijuana is being legalized in many states. Similarly, sports betting legalization is birthing a safer, more successful, and profitable industry in several states. Alcohol prohibition ended long ago and was replaced by regulation.

Why would we rightly recognize the need to end prohibition in these areas but still ban menthol cigarettes?

To believe that prohibition of menthol cigarettes would dramatically improve public health with zero negative consequences concerning disparate law enforcement is to believe in a world that is completely free from trade-offs.

If the FDA bans menthol cigarettes, it will spur the growth of a black market for those products. Law enforcement agencies can then be expected to claim the use and distribution of illegal menthol products as justification for increasing policing actions in minority communities. Thus, the proposed criminalization of menthol cigarettes should be expected to hurt communities of color, spur the growth of black markets, lead to more incarceration, and undermine criminal justice reforms made in recent years.

The post A ban on menthol cigarettes would hurt communities of color and undermine criminal justice reforms appeared first on Reason Foundation.

Thank you for allowing me the opportunity to submit testimony on House Bill 7870. 

My name is Guy Bentley, and I am the director of consumer freedom at the Reason Foundation, a 501(c)3 nonprofit think tank. The consumer freedom project analyzes and promotes policy solutions that improve public health while avoiding unintended consequences and protecting consumer choice.

The intention behind this bill to limit tobacco use, especially among youth, is to be applauded. However, the evidence of the success of such prohibitions should raise significant concerns that the ban would promote further inequalities in the criminal justice system, push sales and tax revenue to other states, increase the illicit tobacco trade, and fail to improve public health in Rhode Island.

Case Studies: Massachusetts, Canadian Provinces, and the European Union

Massachusetts’ ban on flavored tobacco products went into effect in June of 2020. The Reason Foundation has conducted a yet-to-be-published, preliminary analysis of the ban’s impact which compared cigarette sales in and around Massachusetts the year prior to the ban and the year following the ban’s implementation. We found that there was a net increase in cigarette sales of 7.2 million packs sold within Massachusetts and in its bordering states. 

These figures likely underestimate cross-border trade because they do not also account for lost sales of flavored e-cigarettes, smokeless tobacco, or cigars. Massachusetts also saw a 15.6 million pack increase in non-menthol cigarette sales as consumers switched brands.

According to the Tax Foundation, Massachusetts lost $125 million in tobacco revenue for the fiscal year 2021.

Furthermore, according to a study published by the Journal of Law and Economics, Canadian provinces’ menthol prohibition significantly increased non-menthol cigarette smoking among young people, resulting in no overall net change in youth smoking. As for adult smokers, provincial menthol bans simply shifted smokers’ cigarette purchases away from grocery stores and gas stations. 

The world’s largest experiment in menthol prohibition is the European Union, which includes 27 countries and has a population of 447 million people. The EU ban became effective in May of 2020. Prior to the ban, Poland had the largest menthol cigarette market in the EU, making up 28 percent of total sales. An analysis funded by the Norwegian Cancer Society in partnership with the Polish Ministry of Health found there was no statistically significant decline in cigarette sales after the ban.

These results are important not just because they demonstrate an immediate economic impact on jurisdictions that introduce prohibition but, thanks to cross-border trade and the substitution of non-menthol cigarettes, any predicted public health benefits are likely to be severely limited. In other words, the loss in tax revenue is unlikely to be offset by lower health care costs or improved public health.

Public Health and Disparate Impacts

Advocates for the prohibition of menthol cigarettes correctly observe that a disproportionate number of black smokers choose menthol products. In Rhode Island, some hope the ban would dramatically reduce the state’s smoking rate. While these populations are more likely to use a menthol product while white smokers are more likely to use a non-menthol product, smoking prevalence is, in fact, lower among black youth and adults.

Black non-Hispanic young people are less likely to smoke than their white peers. In Rhode Island, 4.1 percent of white high schoolers smoked in 2019. For black Rhode Island high schoolers, the number was 3.4 percent. These data conform to Reason Foundation’s study published in 2020 showing that states with higher menthol cigarette use tend to have lower, not higher, youth smoking rates.

From a public health standpoint, as black adults and young people smoke at lower rates than non-Hispanic whites, it’s hard to ascertain why non-menthol cigarettes, which are equally dangerous, would not be subjected to prohibition while menthol products would be. 

Because menthol cigarettes are overwhelmingly the choice of minority smokers, prohibition will necessarily lead to a concentration of the illicit tobacco market in minority communities. The American Civil Liberties Union and other civil rights groups warn that the prohibition of menthols could disproportionately negatively impact people of color, trigger criminal penalties, and prioritize criminalization over public health and harm reduction. The National Organization of Black Law Enforcement Executives (NOBLE), Grand Council of Guardians (GCGNY), National Association of Black Law Enforcement Officers (NABLEO), and Law Enforcement Action Partnership (LEAP) have argued that prohibitions of all kinds disproportionately affect communities of color, and this is especially the case when it comes to banning menthol cigarettes.

Food and Drug Administration Review and Tobacco Harm Reduction

Last year, the Food and Drug Administration authorized an e-cigarette as “appropriate for the protection of public health” for the first time. The FDA is also currently reviewing e-cigarette product applications that contain reams of data on safety, efficacy, and potential threats to youth. If the FDA finds that any product is a net harm to public health, it will be removed from the market. But if the product is deemed to be net beneficial, it will be authorized for sale as appropriate for the protection of public health. 

If Rhode Island chooses to ban these products prior to the FDA concluding its review, it would limit consumer access to products the FDA may deem as a positive for public health. According to a survey conducted by the International Tobacco Control Policy Evaluation Project, 57 percent of vapers said they would continue vaping if flavors were banned and half said they would find a way to get their preferred flavor. Of most concern was the finding that close to one in five vapers said they would stop vaping and smoke instead. 

While prohibiting e-cigarette flavors other than tobacco may seem an attractive solution to the problem of youth vaping, policymakers should recognize that, according to the 2021 National Youth Tobacco Survey (NYTS), 89 percent of high schoolers are not using e-cigarettes at all and 95 percent are not using them frequently. Youth vaping has also fallen to its lowest point in seven years.

Furthermore, data released by the Centers for Disease Control and Prevention (CDC) shows flavors are not the leading reason why youth initiate vaping. According to the CDC, the primary reason youth initiate vaping is curiosity, followed by use by a friend or family member. Availability in flavors, such as mint, candy, fruit, or chocolate comes as a very distant third. Banning flavored tobacco products may also induce perverse outcomes contrary to the promotion of public health among adolescents. 

In 2018, San Francisco banned the sale of all flavored tobacco products, including e-cigarettes with flavors other than tobacco. Yale University’s Abigail Friedman found that after the ban was enacted, San Francisco area youth had double the odds of smoking compared to similar jurisdictions with no tobacco flavor ban.

“While neither smoking cigarettes nor vaping nicotine are safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. 

According to a 2020 study by researchers at Yale School of Public Health, the use of e-cigarette flavors is positively associated with smoking cessation outcomes for adults but not associated with increased youth smoking. The prestigious Cochrane Review concluded e-cigarettes are more effective than traditional nicotine replacement therapies for helping smokers quit.

Prohibition of flavored e-cigarettes, which are overwhelmingly the choice of adult vapers, risks driving vapers back to smoking, fueling illicit markets, and forcing the closure of Rhode Island vape shops. 

The post Testimony: Rhode Island e-cigarette prohibition could create unintended consequences appeared first on Reason Foundation.

A bill in the Colorado state legislature would prohibit the sale of flavored tobacco products, including menthol cigarettes. Only one state has implemented such a ban. In June 2020, Massachusetts implemented its prohibition of flavored vaping and tobacco products and the results have been disastrous. Lawmakers hoped people would stop smoking and vaping, but, instead, people switched products and sought their favored flavors elsewhere. Sales of non-menthol cigarettes, which are equally as deadly, soared by 15.6 million packs a year in Massachusetts. In neighboring states, where flavored products were available, cigarette sales surged 22 percent in New Hampshire and 18 percent in Rhode Island. The New England region saw no reduction in cigarette sales, but Massachusetts lost $125 million in tax revenue for the fiscal year 2021 due to the flavor ban, according to the Tax Foundation.

Advocates claim banning menthol is about protecting young people, particularly African Americans. But according to the last set of data from the Centers for Disease Control and Prevention (CDC), in 2019 the smoking rate amongst Coloradan black high school-aged students was so low as to not be statistically significant. The latest federal data showed that, nationwide, just 1.9 percent of young people smoked at least once a month in 2021, which is significantly lower than the percentages for marijuana or alcohol use in that age group.

Prohibition can also have perverse consequences, as San Francisco experienced after its flavored tobacco ban in 2018. Yale University’s Abigail Friedman found, “San Francisco’s ban on flavored tobacco product sales was associated with increased smoking among minor high school students relative to other school districts.”

Rather than encouraging kids to stop vaping, the flavor ban drove teens to traditional cigarettes. “While neither smoking cigarettes nor vaping nicotine is safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. 

These results are not surprising. CDC surveys of teenagers show that just 13.2 percent of young people who use e-cigarettes say they do so for the flavors. Driving kids away from flavored vaping products toward traditional cigarettes is a terrible trade-off that worsens public health. E-cigarettes are dramatically safer than combustible cigarettes and are more effective in helping smokers quit than nicotine replacement therapies. 

Additionally, since black adults and young people smoke at lower rates than non-Hispanic white adults and youth, it is hard to ascertain why menthol products are being banned while the non-flavored, but equally dangerous, tobacco products used by more Coloradans would not be subjected to the bill’s prohibition. 

Menthol cigarettes are overwhelmingly the choice of minority adult smokers. As a result, a ban on them will likely lead to the growth of illicit tobacco markets and more policing in minority communities. The American Civil Liberties Union and other civil rights groups warn, “Policies that amount to prohibition for adults will have serious racial justice implications. Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction. A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.” 

Instead of prohibition, Colorado should apply the harm reduction strategies and logic it has used for legal marijuana and sports gambling. In this case, keeping safer alternatives, like vaping products and nicotine pouches, on the adult market can be a long-term tool to help drive down smoking rates. Rather than creating new black markets and policing problems, driving sales to neighboring states, and losing tax revenues, Colorado should resist misguided calls to ban flavored tobacco products.

The post Colorado’s proposed flavored tobacco ban would worsen public health and criminal justice inequities appeared first on Reason Foundation.

Chair Lontine, members of the committee, thank you for allowing me the opportunity to submit testimony on HB22-1064. 

My name is Guy Bentley, and I’m the director of consumer freedom at the Reason Foundation, a 501(c)3 nonprofit think tank. The consumer freedom project analyzes and promotes policy solutions that improve public health while avoiding unintended consequences and protecting consumer choice.

The intention behind HB22-1064 to limit tobacco use, especially among youth, is to be applauded. However, the evidence on the success of such prohibitions should raise significant concern that the ban will promote further inequalities in the criminal justice system, push sales and tax revenue to other states, increase the illicit tobacco trade, and fail to improve public health in Colorado. 

Case Studies: Massachusetts, Canadian Provinces, and the European Union

Massachusetts’ ban on flavored tobacco products went into effect in June of 2020. A preliminary analysis awaiting publication conducted by Reason Foundation which compared cigarette sales in Massachusetts the year prior to the ban and the year following the ban’s implementation found that, in total, there was a net increase in cigarette sales of 7.2 million packs for Massachusetts and its bordering states. These figures underestimate cross-border trade because they do not account for lost sales of flavored e-cigarettes, smokeless tobacco, or cigars. There was also an increase of non-menthol cigarette sales in Massachusetts of 15.6 million packs as consumers switched brands.

Furthermore, according to a study published by the Journal of Law and Economics, Canadian provinces’ menthol prohibition has significantly increased non-menthol cigarette smoking among youths, resulting in no overall net change in youth smoking rates. As for adult smokers, the study discovered, provincial menthol bans shifted smokers’ cigarette purchases away from grocery stores and gas stations to First Nations reserves (where the menthol bans do not apply). 

The world’s largest experiment in menthol prohibition is the European Union, which includes 27 countries and a population of 447 million people. The EU ban became effective in May of 2020. Prior to the ban, Poland had the largest menthol cigarette market in the EU, making up 28 percent of total sales. An analysis funded by the Norwegian Cancer Society in partnership with the Polish Ministry of Health found there was no statistically significant decline in cigarette sales. These results are important not just because they demonstrate an immediate economic impact on jurisdictions that introduce prohibition but, thanks to cross-border trade and the substitution of non-menthol cigarettes, any health benefits are severely limited. In other words, the loss in tax revenue is unlikely to be made up of lower healthcare costs.

Public Health and Disparate Impacts

Advocates for the prohibition of menthol cigarettes correctly observe that a disproportionate number of Black smokers choose menthol products. In Colorado, some hope the ban will dramatically reduce the state’s smoking rate. While these populations are more likely to use a menthol product while White smokers are more likely to use a non-menthol product, smoking prevalence is, in fact, lower among Black youth and adults.

Black non-Hispanic youth are less likely to smoke than their White peers. In Colorado, 4.3 percent of White high schoolers smoked in 2019. For Black Coloradan high schoolers, the numbers were so low as to not be statistically significant. These data conform to Reason Foundation’s study published in 2020 showing that states with higher menthol cigarette use tend to have lower, not higher, youth smoking rates. From a public health standpoint, as Black adults and youth smoke at lower rates than non-Hispanic Whites, it’s hard to ascertain why non-menthol cigarettes, which are equally dangerous, will not be subjected to prohibition and menthol products will be. 

Because menthol cigarettes are overwhelmingly the choice of minority smokers, prohibition will necessarily lead to a concentration of the illicit tobacco market in minority communities. The American Civil Liberties Union and other civil rights groups warn prohibition could disproportionately impact people of color, trigger criminal penalties, and prioritize criminalization over public health and harm reduction. The National Organization of Black Law Enforcement Executives (NOBLE), Grand Council of Guardians (GCGNY), National Association of Black Law Enforcement Officers (NABLEO), and Law Enforcement Action Partnership (LEAP) have argued that prohibitions of all kinds disproportionately affect communities of color, and this is especially the case when it comes to banning menthol cigarettes.

Food and Drug Administration Review and Tobacco Harm Reduction

Last year, the Food and Drug Administration authorized an e-cigarette as “appropriate for the protection of public health” for the first time. The FDA is also currently reviewing e-cigarette product applications that contain reams of data on safety, efficacy, and potential threats to youth. If the FDA finds that any product is a net harm to public health, it will be removed from the market. But if the product is deemed to be net beneficial, it will be authorized for sale as appropriate for the protection of public health. 

If Colorado chooses to ban these products prior to the FDA concluding its review, it would limit consumer access to products the FDA may deem as a positive for public health. According to a survey conducted by the International Tobacco Control Policy Evaluation Project, 57 percent of vapers said they would continue vaping if flavors were banned, but half said they would find a way to get their preferred flavor. Of most concern was the finding that close to one in five vapers said they would stop vaping and smoke instead.

While prohibiting e-cigarette flavors other than tobacco may seem an attractive solution to the problem of youth vaping, policymakers should recognize that, according to the 2021 National Youth Tobacco Survey (NYTS), 89 percent of high schoolers are not using e-cigarettes at all and 95 percent are not using them frequently. Youth vaping has also fallen to its lowest point in seven years. Furthermore, data released by the Centers for Disease Control and Prevention (CDC) shows flavors are not the leading reason why youth initiate vaping. According to the CDC, the primary reason youth initiate vaping is curiosity, followed by use by a friend or family member. Availability in flavors, such as mint, candy, fruit, or chocolate comes as a very distant third. Banning flavored tobacco products may also induce perverse outcomes contrary to the promotion of public health among adolescents. 

In 2018, San Francisco banned the sale of all flavored tobacco products, including e-cigarettes with flavors other than tobacco. Yale University’s Abigail Friedman found that after the ban was enacted, San Francisco area youth had double the odds of smoking compared to similar jurisdictions with no tobacco flavor ban. “While neither smoking cigarettes nor vaping nicotine are safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. 

According to a 2020 study by researchers at Yale School of Public Health, the use of e-cigarette flavors is positively associated with smoking cessation outcomes for adults but not associated with increased youth smoking. The prestigious Cochrane Review concluded e-cigarettes are more effective than traditional nicotine replacement therapies for helping smokers quit. Prohibition of flavored e-cigarettes, which are overwhelmingly the choice of adult vapers, risks fueling illicit markets, forcing the closure of Colorado vape shops, and driving vapers back to smoking.

The post Colorado should rethink potential tobacco prohibitions appeared first on Reason Foundation.

Chair, members of the committee, thank you for allowing me the opportunity to submit testimony on Senate Bill 367. 

My name is Guy Bentley, and I’m the director of consumer freedom at the Reason Foundation, a 501(c)3 nonprofit think tank. The consumer freedom project analyzes and promotes policy solutions that improve public health while avoiding unintended consequences and protecting consumer choice.

The intention behind Senate Bill 367 to limit tobacco use, especially among youth, is to be applauded. However, the evidence on the success of such prohibitions should raise significant concern that the flavored tobacco ban will push sales and tax revenue to other states, increase the illicit tobacco trade, and drive Connecticut vapers to more dangerous kinds of tobacco products such as combustible cigarettes. 

Research Finds E-cigarette Prohibition Can Increase Cigarette Use

While they are not risk-free, e-cigarettes are a substantially safer method of consuming nicotine than traditional cigarettes. This is because lighting tobacco on fire and inhaling the resulting smoke, not nicotine itself, is responsible for smoking-related diseases. Millions of Americans have quit smoking thanks to e-cigarettes because they are substitutes, not complements, to traditional cigarettes. E-cigarettes are even recommended as a harm reduction tool from the United Kingdom to New Zealand, and the U.S. Food and Drug Administration has authorized an e-cigarette as “appropriate for the protection of public health.” That’s why draconian restrictions on e-cigarettes can lead to unintended consequences, including greater cigarette use. 

In 2018, San Francisco banned the sale of all flavored tobacco products, including e-cigarettes with flavors other than tobacco. Yale University’s Abigail Friedman found that after the ban was enacted, San Francisco area youth had double the odds of smoking traditional combustible cigarettes compared to similar jurisdictions with no tobacco flavor ban. “While neither smoking cigarettes nor vaping nicotine are safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. 

According to a 2020 study by researchers at the Yale School of Public Health, the use of e-cigarette flavors is positively associated with smoking cessation outcomes for adults but not associated with increased youth smoking. Vapers who have quit smoking thanks to the use of e-cigarettes. A survey conducted by the International Tobacco Control Policy Evaluation Project found that 57 percent of vapers said they would continue vaping if flavors were banned, but half said they would find a way to get their preferred flavor. Of most concern, was the finding that close to one five vapers said they would stop vaping and smoke instead.

Nicotine Content and Smoking Cessation

Capping the nicotine in e-cigarettes to below that of regular cigarettes, as Senate Bill 367 proposes, necessarily increases the relative appeal of cigarettes. There is an emerging body of evidence to suggest that e-cigarettes with a higher nicotine content relative to lower content e-cigarettes are more effective in transitioning smokers away from cigarettes and that limiting nicotine content could increase puffing intensity. 

Research funded by Cancer Research UK and published in the journal Addiction, found that vapers using lower nicotine e-cigarettes used more e-liquid, puffed more deeply and more often than those who used a higher strength e-cigarette. Research specifically examining smokers using the Juul product published in Nicotine and Tobacco Research found those smokers who had access to the higher nicotine Juul product in North America were significantly more likely to switch to vaping than those in the United Kingdom who only had access to lower strength nicotine products. In addition, a new study from a range of authors examined how e-cigarettes with two different nicotine concentrations might affect smokers with no plans to quit. At 24 weeks, those participants using the higher nicotine e-cigarette were more than twice as likely to abstain from smoking than those using the lower nicotine e-cigarette. 

The UK government, which limits nicotine in e-cigarettes to 20mg/ml as a result of the European Tobacco Products Directive, is actively considering revising that limit upwards. One of the reasons for this is that the evidence showing e-cigarettes are more effective than nicotine replacement therapies (NRT) for helping smokers quit has strengthened significantly in recent years. For example, the most recent randomized controlled trial comparing e-cigarettes with NRT found smokers who used e-cigarettes were six times more likely to have stopped smoking than those using NRT.

Food and Drug Administration Review and Tobacco Harm Reduction

Last year, the Food and Drug Administration authorized an e-cigarette as “appropriate for the protection of public health” for the first time. The FDA is reviewing all remaining e-cigarette product applications. These applications contain reams of data on safety, efficacy, and potential threats to youth. If the FDA finds that any vaping product is a net harm to public health, it will be removed from the market, until it can prove otherwise. 

But if the product is deemed to be net beneficial, it will be authorized for sale as appropriate for the protection of public health. If Connecticut chooses to ban these products prior to the FDA concluding its review it would limit consumer access to products the FDA may deem as a positive for public health. 

While prohibiting e-cigarette flavors other than tobacco may seem an attractive solution to the problem of youth vaping, policymakers should recognize that according to the 2021 National Youth Tobacco Survey (NYTS), 89 percent of high schoolers are not using e-cigarettes at all and 95 percent are not using them frequently. Youth vaping has also fallen to its lowest point in seven years. Furthermore, data released by the Centers for Disease Control and Prevention (CDC) shows flavors are not the leading reason why youth initiate vaping. According to the CDC, the primary reason youth initiate vaping is “curiosity,” followed by “friend or family member used them,” with “they are available in flavors, such as mint, candy, fruit, or chocolate” coming a very distant third.

Writing in the American Journal of Public Health, 15 past presidents of the Society for Research on Nicotine and Tobacco argued that banning flavors could reduce smokers’ use of e-cigarettes to quit smoking. Instead of prohibition, they proposed limiting retail sales of flavored vapor products to adult-only outlets such as vape shops. 

In 2020, the prestigious Cochrane Review concluded e-cigarettes are more effective than traditional nicotine replacement therapies for helping smokers quit. Prohibition of flavored e-cigarettes, which are overwhelmingly the choice of adult vapers, risks fueling illicit markets, forcing the closure of Connecticut vape shops, and driving vapers back to smoking. Thank you for your time. I’d be happy to answer any questions.

The post Testimony: Prohibition of Flavored Tobacco Could Increase Cigarette Use in Connecticut appeared first on Reason Foundation.

Chair Johanson, members of the committee, thank you for allowing me the opportunity to submit testimony on HB 1570. 

My name is Guy Bentley, and I’m the director of consumer freedom at the Reason Foundation, a 501(c)3 nonprofit think tank. The consumer freedom project analyzes and promotes policy solutions that improve public health while avoiding unintended consequences and protecting consumer choice.

The intention behind HB 1570 to limit tobacco use, especially among youth, is to be applauded. However, the evidence on the success of such prohibitions should raise significant concern that the ban will promote further inequalities in the criminal justice system, push sales and tax revenue to other states, increase the illicit tobacco trade, and fail to improve public health in Hawaii. 

Case Studies: Massachusetts and Canadian Provinces

Massachusetts’ ban on flavored tobacco products went into effect in June 2020. A preliminary analysis conducted by Reason Foundation that compared cigarette sales in Massachusetts the year prior to the ban to the year following the ban’s implementation found there was a net increase in cigarette sales of 7.2 million packs for Massachusetts and its bordering states. These figures underestimate cross-border trade because they do not account for lost sales of flavored e-cigarettes, smokeless tobacco, or cigars. There was also an increase in non-menthol cigarettes sales in Massachusetts of 15.6 million packs as consumers switched brands.

Furthermore, according to a study published by the Journal of Law and Economics,  Canadian provinces’ menthol prohibition has significantly increased non-menthol cigarette smoking among youths, resulting in no overall net change in youth smoking rates. As for adult smokers, the study discovered, provincial menthol bans shifted smokers’ cigarette purchases away from grocery stores and gas stations to First Nations reserves (where the menthol bans do not apply). These results are important not just because they demonstrate an immediate economic impact on jurisdictions that introduce prohibition but thanks to cross-border trade and the substitution of non-menthol cigarettes any health benefits are severely limited. In other words, the loss in tax revenue is unlikely to be made up by lower healthcare costs.

Public Health and Disparate Impacts

Advocates for the prohibition of menthol cigarettes correctly observe a disproportionate number of Black, Native Hawaiian, Pacific Islander, and Filipino smokers choose a menthol product. In Hawaii, some hope the ban will dramatically reduce the state’s smoking rate. While these populations are more likely to use a menthol product and White smokers use a non-menthol product, smoking prevalence is, in fact, lower among Black youth and adults.

Black non-Hispanic and other, non-Hispanic, youth are less likely to smoke than their White peers. This data conforms to Reason Foundation’s study published in 2021, showing that states with higher menthol cigarette use, such as Hawaii, tend to have lower, not higher, youth smoking rates. From a public health standpoint, as Black adults and youth smoke at lower rates than non-Hispanic Whites, it’s hard to ascertain why non-menthol cigarettes, which are equally dangerous, will not be subjected to prohibition and menthol products will be. 

Because menthol cigarettes are overwhelmingly the choice of minority smokers, prohibition will necessarily lead to a concentration of the illicit tobacco market in minority communities. The American Civil Liberties Union and other civil rights groups warn prohibition could disproportionately impact people of color, trigger criminal penalties, and prioritize criminalization over public health and harm reduction. The National Organization of Black Law Enforcement Executives (NOBLE), Grand Council of Guardians (GCGNY), National Association of Black Law Enforcement Officers (NABLEO), and Law Enforcement Action Partnership (LEAP) have argued that prohibitions of all kinds disproportionately affect communities of color and this in especially the case when it comes to banning menthol cigarettes.

Food and Drug Administration Review and Tobacco Harm Reduction

Last year, the Food and Drug Administration authorized an e-cigarette as “appropriate for the protection of public health” for the first time. The FDA is also currently reviewing e-cigarette product applications that contain reams of data on safety, efficacy, and potential threats to youth. If the FDA finds that any product is a net harm to public health, it will be removed from the market. But if the product is deemed to be net beneficial, it will be authorized for sale as appropriate for the protection of public health. 

If Hawaii chose to ban these products prior to the FDA concluding its review it would limit consumer access to products the FDA may deem as a positive for public health. According to a survey conducted by the International Tobacco Control Policy Evaluation Project, 57 percent of vapers said they would continue vaping if flavors were banned, but half said they would find a way to get their preferred flavor. Of most concern was the finding that close to one in five vapers said they would stop vaping and smoke instead.

While prohibiting flavors may seem an attractive solution to the problem of youth vaping, policymakers should recognize that according to the 2021 National Youth Tobacco Survey (NYTS), 89 percent of high schoolers are not using e-cigarettes at all and 95 percent are not using them frequently. Youth vaping has also fallen to its lowest point in seven years. Furthermore, data released by the Centers for Disease Control and Prevention (CDC) shows flavors are not the leading reason why youth initiate vaping. According to the CDC, the primary reason youth initiate vaping is “curiosity,” followed by “friend or family member used them,” with “they are available in flavors, such as mint, candy, fruit, or chocolate” coming a very distant third. Banning flavored tobacco products may induce outcomes contrary to the promotion of public health among adolescents. 

In 2018, San Francisco banned the sale of all flavored tobacco products, including e-cigarettes with flavors other than tobacco. Yale University’s Abigail Friedman found that after the ban was enacted, San Francisco area youth had double the odds of smoking compared to similar jurisdictions with no tobacco flavor ban. “While neither smoking cigarettes nor vaping nicotine are safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. 

According to a 2020 study by researchers at Yale School of Public Health, the use of e-cigarette flavors is positively associated with smoking cessation outcomes for adults but not associated with increased youth smoking. The prestigious Cochrane Review concluded e-cigarettes are more effective than traditional nicotine replacement therapies for helping smokers quit. Prohibition of flavored e-cigarettes, which are overwhelmingly the choice of adult vapers, risks fueling illicit markets, forcing the closure of Hawaii’s vape shops, and driving vapers back to smoking.

The post Testimony: Hawaii should rethink vaping prohibitions appeared first on Reason Foundation.

My name is Guy Bentley, and I’m the director of consumer freedom at the Reason Foundation, a 501(c)3 nonprofit think tank. The consumer freedom project analyzes and promotes policy solutions that improve public health while avoiding unintended consequences and protecting consumer choice.

The intention behind HB 1570 to limit tobacco use, especially among youth, is to be applauded. However, the evidence on the success of such prohibitions should raise significant concern that the ban will promote further inequalities in the criminal justice system, push sales and tax revenue to other states, increase the illicit tobacco trade, and fail to improve public health in Hawaii. 

Case Studies: Massachusetts and Canadian Provinces

Massachusetts’s ban on flavored tobacco products went into effect in June 2020. A preliminary analysis conducted by Reason Foundation which compared cigarette sales in Massachusetts the year prior to the ban and the year following the ban’s implementation found that In total there was a net increase in cigarette sales of 7.2 million packs for Massachusetts and its bordering states. These figures underestimate cross-border trade because they do not account for lost sales of flavored e-cigarettes, smokeless tobacco, or cigars. There was also an increase of non-menthol cigarettes sales in Massachusetts of 15.6 million packs as consumers switched brands.

Furthermore, according to a study published by the Journal of Law and Economics,  Canadian provinces’ menthol prohibition has significantly increased non-menthol cigarette smoking among youths, resulting in no overall net change in youth smoking rates. As for adult smokers, the study discovered, provincial menthol bans shifted smokers’ cigarette purchases away from grocery stores and gas stations to First Nations reserves (where the menthol bans do not apply). These results are important not just because they demonstrate an immediate economic impact on jurisdictions that introduce prohibition but thanks to cross-border trade and the substitution of non-menthol cigarettes any health benefits are severely limited. In other words, the loss in tax revenue is unlikely to be made up by lower healthcare costs.

Public Health and Disparate Impacts

Advocates for the prohibition of menthol cigarettes correctly observe a disproportionate number of Black, Native Hawaiian, Pacific Islander and Filipino smokers choose a menthol product. In Hawaii, some hope the ban will dramatically reduce the state’s smoking rate. While these populations are more likely to use a menthol product and White smokers use a non-menthol product, smoking prevalence is, in fact, lower among Black youth and adults.

Black non-Hispanic and other, non-Hispanic youth are less likely to smoke than their White peers. These data conform to Reason Foundation’s study published in 2021, showing that states with higher menthol cigarette use, such as Hawaii, tend to have lower, not higher, youth smoking rates. From a public health standpoint, as Black adults and youth smoke at lower rates than non-Hispanic Whites, it’s hard to ascertain why non-menthol cigarettes, which are equally dangerous, will not be subjected to prohibition and menthol products will be. 

Because menthol cigarettes are overwhelmingly the choice of minority smokers, prohibition will necessarily lead to a concentration of the illicit tobacco market in minority communities. The American Civil Liberties Union and other civil rights groups warn prohibition could disproportionately impact people of color, trigger criminal penalties, and prioritize criminalization over public health and harm reduction. The National Organization of Black Law Enforcement Executives (NOBLE), Grand Council of Guardians (GCGNY), National Association of Black Law Enforcement Officers (NABLEO), and Law Enforcement Action Partnership (LEAP) have argued that prohibitions of all kinds disproportionately affect communities of color and this in especially the case when it comes to banning menthol cigarettes.

Food and Drug Administration Review and Tobacco Harm Reduction

Last year, the Food and Drug Administration authorized an e-cigarette as “appropriate for the protection of public health” for the first time. The FDA is also currently reviewing e-cigarette product applications that contain reams of data on safety, efficacy, and potential threats to youth. If the FDA finds that any product is a net harm to public health, it will be removed from the market. But if the product is deemed to be net beneficial, it will be authorized for sale as appropriate for the protection of public health. 

If Hawaii chose to ban these products prior to the FDA concluding its review it would limit consumer access to products the FDA may deem as a positive for public health. According to a survey conducted by the International Tobacco Control Policy Evaluation Project, 57 percent of vapers said they would continue vaping if flavors were banned, but half said they would find a way to get their preferred flavor. Of most concern, was the finding that close to one five vapers said they would stop vaping and smoke instead.

While prohibiting flavors may seem an attractive solution to the problem of youth vaping, policymakers should recognize that according to the 2021 National Youth Tobacco Survey (NYTS), 89 percent of high schoolers are not using e-cigarettes at all and 95 percent are not using them frequently. Youth vaping has also fallen to its lowest point in seven years. Furthermore, data released by the Centers for Disease Control and Prevention (CDC) shows flavors are not the leading reason why youth initiate vaping. According to the CDC, the primary reason youth initiate vaping is “curiosity,” followed by “friend or family member used them,” with “they are available in flavors, such as mint, candy, fruit, or chocolate” coming a very distant third. Banning flavored tobacco products may also induce perverse outcomes contrary to the promotion of public health among adolescents. 

In 2018, San Francisco banned the sale of all flavored tobacco products, including e-cigarettes with flavors other than tobacco. Yale University’s Abigail Friedman found that after the ban was enacted, San Francisco area youth had double the odds of smoking compared to similar jurisdictions with no tobacco flavor ban. “While neither smoking cigarettes nor vaping nicotine are safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. 

According to a 2020 study by researchers at Yale School of Public Health, the use of e-cigarette flavors is positively associated with smoking cessation outcomes for adults but not associated with increased youth smoking. The prestigious Cochrane Review concluded e-cigarettes are more effective than traditional nicotine replacement therapies for helping smokers quit. Prohibition of flavored e-cigarettes, which are overwhelmingly the choice of adult vapers, risks fueling illicit markets, forcing the closure of Hawaii’s vape shops, and driving vapers back to smoking.

Thank you for your time. I’d be happy to answer any questions.

Guy Bentley, Director of Consumer Freedom

guy.bentley@reason.org

The post Testimony: Banning e-cigarettes in Hawaii could negitively impact public health appeared first on Reason Foundation.