Flavored Tobacco Products Dominate State Legislatures as 2020 Kicks Off

January 30, 2020|11:21 a.m.| ASTHO Staff

E-cigarette use among youth has grown to epidemic proportions. After a promising couple of years that showed youth e-cigarette use dropped significantly in 2016 and 2017, use has increased dramatically since then. The percentage of high schoolers who reported using e-cigarettes rose to 20.8 percent in 2018. More recently, results from the 2019 National Youth Tobacco Survey (NYTS) found that more than 27.5 percent of high schoolers use e-cigarettes.

Youth prefer flavored e-cigarette products. According to the FDA, 96 percent of youth who initiated e-cigarette use between 2016 and 2017 did so with a flavored e-cigarette product. The 2019 NYTS also found that 72 percent of current high school e-cigarette users reported using a flavored e-cigarette product in the last 30 days, with fruit, menthol or mint, candy, desserts, and other sweets as the most reported flavors being used. These flavors come at a cost: those who vape flavored e-cigarettes are more likely to continue vaping and vape more.

These troubling statistics led governors and health agencies in several states to issue emergency rules prohibiting the sale and distribution of flavored e-cigarettes last fall. The federal government also stepped in, with the FDA announcing a ban on the sale of pre-filled, flavored e-cigarette cartridges or pods. It does not apply to menthol and tobacco flavors or flavored liquid nicotine that is used in refillable, open tank systems.

Now, as state legislatures return to session, legislation to regulate the sale and distribution of flavored e-cigarettes is ramping up. Many of the proposals go beyond the federal policy by prohibiting the sale of all flavored e-cigarettes and/or flavored tobacco products within the state. Below is an overview of current state legislative proposals to address flavored e-cigarettes and flavored tobacco.

In general, the state bills to ban flavored e-cigarettes include menthol and exclude tobacco flavor. For example, earlier this month, New Jersey enacted S 3265 to prohibit the sale of all flavored vaping products (e.g., e-cigarettes), including menthol flavored e-cigarettes, but excluding tobacco flavored ones. Other states with similar bills include Florida (SB 1638 and SB 694), Hawaii (SB 2228), Illinois (SB 668), Indiana (SB 193 and SB 376), Kentucky (HB 158), New Mexico (SB 91), New York (S 428 and A 47), Oklahoma (SB 1675), South Carolina (S 995), and Vermont (H 823).

Bills in Washington State (SB 6254 and HB 2454) and Rhode Island (HB 7171) would prohibit flavored e-cigarettes as well as establish licensing for manufacturers of e-cigarette products, like e-liquids. It would also limit the nicotine levels at which the products can be sold: 20 milligrams per milliliter in Washington and 35 milligrams per milliliter in Rhode Island. In New Hampshire (HB 1410) and South Dakota (HB 1064), bills to prohibit the sale of flavored e-cigarettes would allow menthol flavored products. Finally, in Utah, a bill under consideration (HB 118) would restrict the sale of flavored e-cigarettes to certain retailers.

Several other bills are taking things even further by proposing to prohibit the sale of all flavored tobacco products, which would apply to menthol cigarettes and other flavored combustible products. For example, last November, Massachusetts enacted H 4196, a law that prohibits the sale, marketing, or advertising of any flavored tobacco product or flavor enhancer in any retail establishment, online, or through other means, except if sold by a smoking bar. The California legislature is considering bills (AB 739 and SB 793) that would prohibit tobacco retailers from selling flavored tobacco products. Similarly, Illinois companion bills (HB 3883 and SB 2275) would prohibit establishments from selling or distributing any flavored tobacco products. A proposed bill in New York (S 6809 and A 8808) would prohibit the sale and distribution of flavored tobacco products and accessories. Other states with bills to prohibit the sale of all flavored tobacco products, including flavored e-cigarettes include Indiana (HB 1124), Maryland (HB 3 and SB 233), Missouri (HB 2159), Vermont (S 288), and Virginia (HB 1119). New Jersey prohibits flavored cigarettes, excluding menthol and clove flavor since 2008, and there are bills under consideration to include menthol and clove flavors in the ban (S 514) and add flavored cigars (A 983).

State health agencies are an invaluable resource, as they are equipped with the data and scientific evidence to advance policies that may protect young people from the harms associated with e-cigarette use and nicotine addiction. ASTHO will continue to monitor legislative activity on this important public health issue and can help provide technical assistance on tobacco policy.