State Legislatures Take Action to Restrict Flavored E-Cigarette Sales

November 21, 2019|3:12 p.m.| ASTHO Staff

Youth e-cigarette use is a growing concern among state and federal policymakers and a public health issue that FDA claims has “hit epidemic proportions.” E-cigarettes are now the most commonly used tobacco products among youth and young adults, with e-cigarette use growing 900 percent among middle and high school students from 2011 to 2015. The latest 2019 findings from the National Youth Tobacco Survey indicate that over 5 million middle- and high-school-aged youth reported using e-cigarettes in 2019, including nearly 1 million daily users. Youth e-cigarette rates continue to grow, with 27.5 percent of high school students and 10.5 percent of middle school students reporting that they’ve used e-cigarettes in the last 30 days.

The relationship between e-cigarette and cigarette use among older and younger adults is also striking. For example, in 2015, most adult e-cigarette users 45 and older were either current or former regular cigarette smokers, and less than 2 percent had never been cigarette smokers. By contrast, among e-cigarette users aged 18-23 years, 40 percent had never been regular cigarette smokers. Regulating the sale of flavored e-cigarettes is an important strategy to reduce youth e-cigarette use and deaths. According to FDA, 96.1 percent of youth who initiated e-cigarette use between 2016 and 2017 did so with a flavored e-cigarette product. Analysis of the 2018 National Youth Tobacco Survey data found that 67.8 percent of current high school e-cigarette users reported using a flavored e-cigarette product in the last 30 days, a figure that increased from 60.9 percent in 2017.

As policymakers at the federal level debate the need for regulating e-cigarettes, states are considering legislative action to regulate the sale and distribution of flavored e-cigarettes. Legislative proposals include prohibiting the sale of all flavored e-cigarettes within the state, certain flavors of e-cigarettes, or flavored tobacco products more broadly and restricting the locations where flavored e-cigarettes or tobacco products can be sold. Below is an overview of state legislative activity regulating the sale or distribution of flavored e-cigarettes or tobacco products generally.

In Massachusetts, H 4196, would prohibit the sale, marketing, or advertisement of any flavored tobacco product or flavor enhancer in any retail establishment, online, or through other means to any consumer in the commonwealth, except if sold by a smoking bar. The bill passed the legislature and was sent to the governor for his signature. California legislature is considering companion bills (AB 739 and SB 38) 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) would prohibit the sale and distribution of flavored tobacco products and accessories.

Two state introduced bills targeting the sale of flavored tobacco or e-cigarettes to minors. North Dakota’s governor signed HB 1477, which prohibits the sale or distribution of any flavored e-liquid or electronic smoking device containing flavored e-liquid to a minor. Massachusetts also introduced a bill (H 3778) that would prohibit a person—except a retail tobacco store, a licensee with an alcoholic beverages license on such premises, or a smoking bar—from selling flavored tobacco products in locations accessible to minors.

Several states and the District of Columbia introduced bills explicitly restricting the sale of flavored e-cigarettes, vapor products, or components of e-cigarettes, such as cartridges or e-liquid. The District of Columbia proposed a bill (B23-0453) that would prevent the sale or distribution of flavored electronic smoking devices. The Ohio legislature is considering a bill (HB 346) prohibiting manufacturers, producers, distributors, wholesalers, or retailers of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes from selling or giving away flavored electronic smoking devices or flavored vapor products that have not received approval from the FDA. A proposed bill in Washington (HB 1932) would restrict a retailer or distributor from selling flavored vapor products. In addition, a marijuana retailer would be prohibited from selling any flavored marijuana product intended for consumption through vaporization or aerosolization.

Illinois companion bills (SB 2274 and HB 3887) would prohibit tobacco retailers from selling flavored tobacco products, related tobacco products, alternative nicotine products, or solutions or substances intended for use with e-cigarettes. The Kentucky legislature proposed a bill (BR 468) that would prohibit the sale of vapor product enhanced cartridges other than through in-person purchase. “Vapor product enhanced cartridges” includes vapor product cartridges or other containers holding a solution or other material to be vaporized for inhalation that is enhanced by material that adds non-tobacco flavorings that are designed to sweeten or otherwise alter the taste of the vaporized product so it no longer tastes like a typical cigarette or tobacco product.

New Jersey is considering multiple bills regulating flavored tobacco products and e-cigarettes. A 5134 would expand the state’s prohibition on the sale of flavored tobacco products by prohibiting the sale or distribution of cigars that contain a natural or artificial constituent or additive that cause them (or any smoke emanating from them) to have a characterizing flavor other than tobacco, clove, or menthol. Current law already prohibits the sale or distribution of cigarettes meeting this definition. New Jersey’s S 1947 would add mint, menthol, wintergreen, and clove to the definition of characterizing flavor and would therefore prohibit the sale of cigarettes with these flavors. Similarly, A 3178 would prohibit the sale of menthol cigarettes and flavored electronic smoking devices and related products. Finally, S 3265 would restrict a person from selling, directly or by vending machine, electronic smoking devices, cartridges, or components of the devices, including liquid nicotine, that have a characterizing flavor.

The Pennsylvania legislature is considering a bill (HB 1994) that would make it a criminal offense to sell, furnish, purchase for resale, manufacture, advertise, or market flavored vapor products. In addition, the bill would restrict the placement of vending machines containing flavored vapor products in locations accessible to purchasers.

State health agencies are an invaluable resource, as they are equipped with the data and scientific evidence to advance and advocate for 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.