States Take Executive and Legislative Action to Address Vaping and Flavored E-cigarettes

October 03, 2019|10:35 a.m.| ASTHO Staff

Youth electronic cigarette (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. An estimated 3.6 million middle- and high-school-aged youth reported using e-cigarettes in 2018.

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. In addition to the increase in youth consumption of e-cigarettes, recent high-profile deaths and cases of severe pulmonary illness linked to vaping have resulted in growing concern and support for tobacco control efforts at the federal and state level and by the American public.

Regulating the sale of flavored e-cigarettes is an important strategy to reduce youth e-cigarette use and may decrease lung disease cases 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.

Regulating Flavored E-Cigarettes

Following public comments from HHS Secretary Alex Azar and President Donald Trump, HHS issued a press release on Sept. 11 announcing that the agency intends to remove all flavored e-cigarette products from the market until manufacturers of those products file premarket tobacco product applications with FDA. In addition, on Sept. 24 and Sept. 25, five state health officials testified before Congress about the public health impacts of youth e-cigarette use (including flavored e-cigarettes) and the current lung disease outbreak, which has affected more than 800 individuals in 46 states and one territory.

Governors and state health officials have also taken executive and regulatory action to regulate flavored e-cigarettes. In early September, Michigan became the first state to announce a ban on the sale of all flavored e-cigarettes: based on an emergency finding from the state health agency, Gov. Whitmer directed the agency to issue emergency rules banning the sale of vaping products.

New York's Gov. Cuomo followed suit by instructing the state health agency to convene an emergency session of the state’s Public Health and Health Planning Council to consider banning flavored e-cigarettes. On Sept. 17, the council met and adopted rules banning sales of most flavored e-cigarettes. Although the rules exclude menthol flavoring from the ban, Commissioner of Health Howard Zucker subsequently recommended that menthol be included in the ban as well.

In Massachusetts, Gov. Baker declared a public health emergency, and Department of Public Health Commissioner Monica Bharel issued an order prohibiting the sale or display of all vaping products (including all non-flavored and flavored vaping products) to consumers in retails establishments, online, and through any other means.

States are also taking legislative action to regulate the sale and distribution of flavored e-cigarettes. Legislative trends include prohibiting the sale of:

  • All flavored e-cigarettes within the state.
  • Certain flavors of e-cigarettes.
  • Flavored tobacco products more broadly.
  • Flavored e-cigarettes or tobacco products in establishments where minors have access.

Sale and Distribution Regulation

Below is an overview of state legislative and regulatory activity regulating the sale or distribution of flavored electronic cigarettes or tobacco products generally.

Two states enacted bills regulating the sale of flavored 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. Maine’s governor signed LD 1190, which penalizes the sale of flavored tobacco products, including e-cigarettes and flavoring, to anyone under 21. Maine’s law also penalizes anyone who allows a minor use a tobacco product.

The California legislature is considering companion bills (AB 739 and SB 38) that would prohibit tobacco retailers from selling, possessing with the intent to sell, or offering for sale flavored tobacco products. Similarly, an Illinois bill (HB 3883) would create the Flavored Tobacco Ban Act, prohibiting establishments from selling or distributing any flavored tobacco products.

Massachusetts introduced companion bills (H 1902 and S 1279) that would prevent retailers, retail establishments, or other persons or entities from selling or distributing flavored cigarettes to consumers. In addition, the bills would limit the sale or distribution of flavored tobacco products to smoking bars. 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 a flavored tobacco product in a location where minors are able to enter at any time.

A New Jersey bill (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.)

State health agencies play an important role in implementing strong action to protect consumers from the harms of e-cigarette product use. In addition to rulemaking and support of proposed legislation, several states (Missouri, New York, Oklahoma, Tennessee, and Wisconsin) are publishing advisories to educate the public about the dangers and negative health impacts of these products.

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.