From the White House to City Councils, Officials Rush to Ban Flavors

The moral panic over teen vaping has grown more intense almost daily for two years, but what has happened in the past month has shocked even seasoned observers of the space. Between the already white hot hatred of JUUL (over a variety of real and imagined sins), the early release of survey data showing that teen experimentation with vapes has increased again this year, and the outbreak of “vaping-related” lung injuries that has so far left eight people dead and hundreds in the hospital, the country is now in the grip of full-blown vapor madness.

The news media have largely dropped the ball on the lung injury story, mainly following the CDC’s lead in blaming “vaping” and “e-cigarettes.” It would be easy for a casual reader or viewer of mainstream news to believe that the injuries are caused by commercial nicotine vaping products, when in reality they appear to be caused almost exclusively by products used to dilute cannabis oil.

The combination of reporters covering a topic they barely understand and deliberate misinformation being fed to them by malicious actors has resulted in hundreds of news stories confusing ordinary nicotine-based e-cigarettes with dangerous black market THC oil cartridges.

The poor coverage of the outbreak has led to many (maybe most) people fearing a product that has been used for over a decade by millions of people to avoid cigarettes. And that irrational fear—which is not related to flavors in any way—has helped the traditional anti-vaping groups hype the demand for bans on flavored vaping products.

In just the past two weeks, both Michigan and New York have banned most vape flavors, President Trump has announced his intention to do the same federally, and a growing number of states have begun the process of instituting their own vape bans or restrictions.

This nightmare scenario is going to play out both federally and in states and cities. Politicians at every level are hot to get in on the action, because for the most part, they’ve decided that the positive feedback they get from suburban parents and powerful special interest “health” groups outweighs the political risk of offending vapers and smokers. There has never been a more dangerous moment for the future of vape flavors.

What follows is brief summary of what’s happening across the country.

The White House and Congress

When President Trump announced that he would ban flavored vaping products, his advisers had clearly underestimated the backlash from angry vapers and the thousands of small businesses that serve them. The next day, a CASAA-led White House call-in campaign lit up the switchboards, and vapers filled social media with messages to the President

Two days after announcing the ban, Trump seemed to backtrack. He tweeted, “While I like the Vaping alternative to Cigarettes, we need to make sure this alternative is SAFE for ALL! Let’s get counterfeits off the market, and keep young children from Vaping!”

But the President tweets a lot of things. If his message was intended to indicate a policy change, he certainly forgot to tell his Health and Human Services Secretary Alex Azar, who oversees both the FDA and CDC. The health boss indicated that the flavor ban plan was still full steam ahead.

On Sept. 17—four days after Trump’s apologetic tweet—Azar tweeted a link to an article that he said “sums up our plan for e-cigarettes: 1) Tobacco-flavored still available for adults as an alternative; 2) Companies can already submit flavored products for FDA review; 3) Flavors that appeal to kids will not be allowed on market until approved.”

Conservative activists who support vaping have been working behind the scenes to change minds in the administration. Paul Blair of Americans for Tax Reform has been trying to convince White House officials that angry vapers will be a potent political force in the 2020 presidential election. Blair has worked tirelessly to shift the President’s focus from angry suburban moms who hate JUUL to the millions of vapers that use flavored products.

Blair’s argument is that there are enough vapers in many of the states that Trump won by small margins in 2016 to reverse the election result next year. In Michigan, for example, Trump won by a scant 11,000 votes, and Blair says there are more than 400,000 vapers, many of whom are single-issue voters. Even if they don’t vote for Trump’s opponent, just staying home could swing the balance in a close race.

Blair, a longtime supporter of vaping, has received a lot of support from vapers on Twitter, who have sent messages to Trump and 2020 campaign manager Brad Parscale explaining why the President will lose their votes if he supports a ban. A meeting yesterday at the White House between administration officials and vaping advocates, including Blair, was abruptly cancelled (because of scheduling conflicts, said the White House), but efforts continue.

At this moment, there is no reason to believe that Trump has changed course on his support for a flavor ban. Vapers should continue to call the White House (202-456-1111) and send emails to Trump and their members of Congress. The CASAA call to action linked below allows you to send messages to all four (the President, two Senators, and U.S. House member) with a single keystroke.

In Congress, even before the lung injury outbreak, there had been multiple bills introduced that would ban flavors, prohibit online sales, force the vaping industry to pay user fees to the FDA, create a national Tobacco 21 law, regulate synthetic nicotine, restrict advertising, or do some combination of those things.

Now senators from both parties are coming together to propose tough rules that will restrict vaping hardware and impose federal taxes on vaping products. An aide to Illinois Sen. Dick Durbin told Roll Call that Congress may have to give the FDA additional resources to “go after” vape shops after a flavor ban is in place.

Republican Utah Sen. Mitt Romney thinks there needs to be a law to prevent vape devices from being opened and refilled. Romney is apparently unaware that cannabis vaping products will remain untouched by any FDA rules or laws passed by Congress (because cannabis is already federally illegal). And New Jersey Democratic Sen. Robert Menendez wants an outright ban on all vaping products.

The House Oversight Committee will hold a hearing next week to “examine the outbreak of lung illness associated with using e-cigarette products; the causes of the outbreak; the CDC and state health officials warning against the use of e-cigarettes; and CDC reports that youth use of e-cigarettes has risen again.” The hearing title is “Don’t Vape.”

States and cities

The flavor bans in Michigan and New York showed state lawmakers that they didn’t have to wait for President Trump and Congress to take action. And they haven’t. In the 16 days since Democratic Michigan Gov. Whitmer announced that she would ban flavored products through emergency powers, lawmakers in states and cities around the country have proposed or introduced laws and rules to ban and restrict vapor products.

Albany County (NY) 

The Albany County Legislature will hold a hearing Sept. 24 to reconsider an amended version of a previously proposed law banning sales of flavored vaping products (except tobacco flavor). Details are in the CASAA call to action below, along with the information you need to send written testimony that will be part of the public record.

The fight to protect flavors in Albany County has gone on for months. Now that Gov. Cuomo has imposed an "emergency" flavor ban on the whole state, are hearings like this one (and the one in Hempstead Township, listed below) still important?

Yes! There is a good chance the governor's ban will be stayed or completely overturned in court. If it is, local bans like the one being debated in Albany County will still take effect if they pass. The last time the county legislature debated the law, vapers and business owners turned out in large numbers. That needs to happen again.

Arkansas

Republican State Senate leader Jim Hendren will introduce a bill that would impose a 67 percent wholesale tax on vapor products, and add vaping to the state’s Clean Indoor Air Act. The Arkansas legislature is not in regular session again until 2021, but Hendren is proposing a special session, possibly this year. Hendren also proposed a vape tax in the last legislative session.

Burbank (CA) 

The City of Burbank is holding a public hearing on Sept. 24 to discuss banning flavored vaping products. Details are in the link below, along with instructions on how to send messages to the City Council (whether you attend the hearing or not).

California

Democratic Gov. Gavin Newsom announced a $20 million awareness campaign, and said that he would work with the state legislature next year on a statewide flavor ban. He also ordered regulators to find ways to ban illegal and counterfeit products.

California is no stranger to vaping bans. After San Francisco voters approved a flavor ban in 2018—the first city to do so—many other cities and counties in the state have followed. San Francisco has since approved a ban on all vaping products, set to take effect in January if a ballot initiative sponsored by JUUL doesn’t overturn the ban in November.

Chicago (IL)

Alderman Raymond Lopez tried unsuccessfully this week to bypass normal City Council rules and call for an immediate vote to ban sales of all vaping products. His gambit was shot down by Mayor Lori Lightfoot. However, at an earlier news conference Lightfoot had indicated that she would propose a ban on flavored vaping products “after we go through an engagement process” with community leaders. Both Chicago lawmakers are Democrats.

Connecticut

Connecticut lawmakers are ready to introduce flavor ban legislation if they don’t see action from the Trump administration soon. “It should come as no surprise that this is something the Public Health Committee will consider next year,” Democratic Rep. Jonathan Steinberg told the Connecticut Mirror. “We will be ready. We’ve written language on banning flavors. We can definitely take this on.”

Washington, D.C.

A majority of the D.C. Council has co-sponsored a bill to ban flavored vapor products. A separate bill proposes on ban on sales at any retailer except medical marijuana dispensaries or pharmacies.

Florida

Republican Florida Rep. Jackie Toledo has proposed a bill that would ban flavored e-cigarettes, and change the legal buying age to 21. The bill will not be heard in the Florida legislature until the 2020 legislative session.

Hempstead Township (NY) 

The Hempstead Township Council will hold a public hearing on Sept. 24 to consider an ordinance that would ban all flavored vaping products. Meeting details and information to contact council members is in the call to action below.