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June 30, 2023

Flavor Ban Removed from Ohio Budget Bill

July 5 update - governor vetoes preemption measure

On July 3, Ohio Governor Mike DeWine vetoed the local preemption measure passed by the General Assembly as part of HB 33, the state budget bill for 2024-25. As explained in the article below, the measure would have nullified local tobacco and nicotine product laws more restrictive than statewide laws, like the flavored vape ban passed by the city of Columbus, and prevented similar local laws from being passed in the future.

DeWine previously vetoed an almost identical preemption measure passed in the last General Assembly session.

“In the absence of an effective and comprehensive statewide flavored tobacco ban (including menthol)---which is this administration’s preferred policy approach---local government bans are essential because they reduce access to flavored tobacco and nicotine alternative products and interrupt the cycle of addiction,” the governor wrote in his list of line-item vetoes.

Altogether DeWine vetoed 44 individual items in the huge budget bill. Ohio governors have the ability to sign bills into law but reject individual parts of a bill. These so-called line-item vetoes can be overridden by the General Assembly with a three-fifths vote in both the House and the Senate.

It isn't known if state legislators will pursue an override of the governor's veto of the preemption measure.

June 30 update - flavor ban removed from final bill

The amendment to the Ohio budget bill that would have banned all flavored vapes (except tobacco and menthol)---unless authorized by the FDA---was removed from the bill today, according to a tweet by Gregory Conley of the American Vapor Manufacturers Association. That means the must-pass bill will not include any new restrictions on vaping products.

Conley also noted that the preemption provision (which would prevent local governments from imposing stricter standards on nicotine products than state law provides) remains in the bill that will be sent to Governor Mike DeWine.

That sets up a repeat of last session's showdown with DeWine, who vetoed an identical preemption measure in January. Because DeWine waited to veto the bill until the legislative session expired, there was no opportunity for state legislators to override the governor's action. That isn't the case this time.

"Unlike last year," Conley wrote, "there is time for legislators to come back to override."

If the bill is passed and signed into law with the preemption amendment intact---or if the General Assembly overrides a veto of the amendment---existing local restrictions like the flavor ban passed by the city of Columbus would be reversed.

June 20, 2023

New legislation in Ohio would ban the sale of all flavored vaping products (aside from tobacco and menthol) not specifically authorized by the FDA. If passed, the law would wipe out vape shops and eliminate legal access to products preferred by the vast majority of consumers, including disposable vapes and bottled e-liquid. But it would leave unauthorized vape products sold by major tobacco companies untouched.

The proposed flavor ban was included at the last minute as an amendment to the State Senate version of HB 33, the 2024-25 appropriations bill. The amendment received no public debate, and the bill was passed the day after it was added.

Opposition to the flavor ban must happen quickly

The flavor ban amendment was promoted to Ohio legislators by tobacco giant R.J. Reynolds, which sells Vuse vape products. The amendment is similar to bills previously introduced in other states that were supported by Reynolds and Juul Labs. Both companies sell vapes only available in tobacco and menthol flavors.

Both the Senate and House have passed their own versions of the appropriations bill, but differences between the bills (including the anti-flavor amendment) will require them to be reconciled in a conference committee before a final bill can be passed by the full General Assembly.

Committees will begin work on the final bill this week. The appropriations bill must pass (it funds the government for the next fiscal year), so opposition to the amendment must happen swiftly to persuade state legislators to leave the anti-flavor provision out of the final, reconciled bill.

CASAA has issued a call to action, alerting Ohio vape consumers to the sneaky amendment and providing Ohio vapers a simple way to oppose the flavor ban. Ohio residents can also call the offices of their State House and Senate members to urge opposition to the amendment.

What would the flavor ban amendment do?

The purpose of the anti-flavor amendment is to eliminate competition against R.J. Reynolds’ Vuse vape products. While the company’s Vuse Alto remains the single most popular device in the convenience store/gas station segment of the vaping market, it now faces retail pressure from newly popular flavored disposable vape products, and ongoing rivalry with open-system vapes (bottled e-liquids and refillable devices) sold mostly in vape shops.

The Ohio anti-flavor amendment, if it becomes law, would prohibit the sale of any flavored vaping product (aside from tobacco and menthol flavors) that has not been authorized for sale by the FDA.

The FDA has not authorized any vaping products in non-tobacco flavors, or any bottled e-liquid in any flavor. It has authorized just seven closed-system vaping devices (all made by companies owned by major tobacco corporations, including three Vuse products), and only tobacco-flavored refills for those products.

Because the law wouldn’t apply to menthol-flavored products, R.J. Reynolds’ popular Vuse Alto and its menthol pods would continue to be sold in Ohio, even though the Alto hasn’t received FDA authorization. But flavored disposable vapes and bottled e-liquids—even those with pending premarket tobacco applications (PMTAs)—would be illegal in Ohio.

The local preemption provision will only help tobacco industry vapes

The appropriations bill also includes a provision that would prohibit local governments in Ohio from passing their own tobacco- and vaping-related restrictions. Such a law would prevent cities and counties from passing product rules that could be stricter than the state’s, like the flavor ban passed by Columbus last year.

Even though this provision would be helpful to vaping consumers and vape shops if the state didn’t also ban flavored vapes, it’s really designed to prevent the passage of local laws that include a prohibition on menthol cigarette sales. Newport cigarette manufacturer R.J. Reynolds wants both provisions passed into law, which would outlaw flavored vapes and prohibit city governments from banning menthol cigarette sales.

However, following passage of the Columbus flavor ban, the General Assembly passed a similar preemption law, which was promptly vetoed by Governor Mike DeWine. There is no reason to believe that DeWine—who indicated he would gladly support a statewide ban on vape flavors—wouldn’t now use his line-item veto power to eliminate the new preemption provision, while signing the flavor ban provision into law.

Reynolds and BAT declare war on indie vape manufacturers

Reynolds and its parent company British American Tobacco (BAT) have recently engaged in a series of actions against disposable vapes that compete with their prefilled pod devices sold around the world under the Vuse name. And Reynolds has opposed the very existence of open-system products like bottled e-liquid, mods and tanks from the very start.

  • In a 2014 comment on a draft version of the FDA’s Deeming Rule, R.J. Reynolds advised the agency to simply ban all refillable devices and bottled e-liquid. “Unlike closed-system products,” the company said, “open-system products are highly customizable. As a result, there is no way to adequately evaluate how such a product will work or to establish whether consistency of product composition and quality can be maintained.”
  • In February of this year, Reynolds filed a formal FDA citizen petition, asking the agency to target disposable vapes for enforcement. The cigarette manufacturer said additional vape enforcement actions would “better protect public health.”
  • Following a failed bid to buy disposable vape manufacturer Elf Bar in late 2022, Reynolds’ corporate parent BAT provided testing data to UK Trading Standards teams the tobacco company said “demonstrated consistent and widespread overfilling” of the disposable products. The actions came after a British newspaper conducted its own similar tests. BAT then sent letters to retailers warning them of “the risks of corporate and personal liability arising from the sale of non-compliant products.”

  • Immediately after Reynolds’ citizen petition was filed, a bill was introduced in the House of Representatives that would require the FDA to update its vaping product enforcement guidance to specify “how the agency will prioritize enforcement against disposable ENDS products.” The bill received no support from tobacco control and anti-vaping groups, which believed the legislation came from Reynolds.
  • Around the same time as Reynolds’ citizen petition and the introduction of the House bill, a bizarre anti-disposable campaign was launched by a little-known organization called Consumer Action for a Strong Economy (CASE). The initiative includes a huge signboard truck driving around Washington D.C. with images of a shady peddler opening his raincoat to show colorful disposable vapes for sale. The CASE website has recently been updated to praise the FDA for issuing import alerts to some Chinese shippers and warning letters to some disposable manufacturers.
  • Over the past several months (and possibly going back to last year), Reynolds has sent threatening letters to vape shops and some other retailers, suggesting that sales of unauthorized vaping products could result in prosecutions under state law and lawsuits by Reynolds resulting in damage awards.
Smokers created vaping without help from the tobacco industry or anti-smoking crusaders, and I believe vapers have the right to continue 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’m a member of 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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David Voisard
David Voisard
7 months ago

This is complete BS. Big tobacco just wants to cut out their competitors. The people voting on this have no idea regarding the truth on vaping. It is not their choice on what people choose to do. Gee Ohio controls all liquor sells in the state and that is ok. And then sneaking this crap into a budget bill that has to pass is criminal. Same as trying to pass issue one what utter BS.