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June 16, 2021

D.C. Council Votes to Prohibit Flavored Vapes

June 29 update

The council confirmed the flavor ban today with its second vote on the issue. However, the ban won't take effect until late 2022, according to Competitive Enterprise Institute fellow Michelle Minton, who said it must first be included in the District's budget.

The District of Columbia Council voted 9-3 Tuesday to prohibit sales of flavored vaping and tobacco products, including menthol cigarettes and cigars. In a last-minute change, the council exempted bars and restaurants that sell hookah products.

The bill requires a second vote on June 29, but the result isn’t expected to change. Following the second vote, the law will take effect after approval by the mayor and a 30-day congressional review period.

The Washington, D.C. bill is typical of recent flavor bans, prohibiting “characterizing flavors” other than tobacco. The law also includes synthetic nicotine products, and seems broad enough to capture nicotine pouches, which contain no tobacco and are only available in non-tobacco flavors.

The flavor bill provides for fines as high as $10,000 per offense for businesses violating the sales ban, but limits the penalty for individuals to $25, which may encourage street-level sales of menthol cigarettes—and possibly disposable vapes.

In an effort to eliminate potentially hostile interactions with police, the council assigned enforcement of the law to the District’s Department of Consumer and Regulatory Affairs. However, as American Vaping Association President Gregory Conley pointed out, D.C. Metropolitan Police will still have jurisdiction over sales of untaxed cigarettes.

Black and Hispanic law enforcement leaders warned that the law could lead to “more negative and more likely counterproductive interactions between law enforcement and people of color.” They joined with the National Newspaper Publishers Association—which represents more than 200 black-owned community newspapers—to oppose the bill.

“Banning menthol is not going to make the demand for menthol products go away,” said Sgt. Anthony Miranda of the National Latino Officers Association. “We know this because illegal drugs are used by people in every community in every state across this country. When there is a high demand, an illegal market will fill the void, if a legal, regulated market does not. Bans and prohibitions don’t work. They actually create crime.”

Last week, a confrontation between Ocean City, MD police and vaping teenagers led to violence that was captured on video and shared by millions on social media.

But tobacco control groups like the Campaign for Tobacco-Free Kids and the American Cancer Society’s lobbying arm the Cancer Action Network cheered the D.C. vote.

“The Council’s action is the right move to stop the tobacco industry from addicting a new generation of kids and reversing the enormous progress we have made in reducing youth tobacco use,” said Tobacco-Free Kids president Matthew Myers. Myers’ organization received a $160 million in 2019 from Bloomberg Philanthropies to write and lobby for flavored vape bans.

The D.C. city government has been consistently antagonistic toward vaping. In 2015, the city classified e-cigarettes as “other tobacco products,” which made them subject to an excessive wholesale tax. The current tax rate is 96 percent, which applies to devices and nicotine-containing e-liquid.

The flavor ban, justified as a way to reduce teenage vaping and smoking, is unlikely to have much effect—except to damage legitimate small businesses. D.C. residents live just minutes away from the states of Virginia and Maryland, where flavored vapes and cigarettes are legal. Additionally, a recent Yale study showed that a flavored vape ban in San Francisco made high school students more likely to smoke combustible cigarettes.

Bizarrely, the bill leaves in place the District’s existing age limit of 16 to buy tobacco—even though federal law has prohibited sales to anyone under 21 since 2019.

Washington, D.C. is not a state, but a federal district that serves as the nation’s capital, and is ultimately controlled by the U.S. Congress, which can override locally passed laws—although there is little chance of the flavor ban being overturned.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy
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