CASAA Submits Written Testimony in Opposition to NYC’s Proposed Flavor Ban (Int. No. 1362-2019)

On January 30, 2019, the New York City Committee on Health met to receive testimony from anti-tobacco activists, harm reduction advocates, consumers, and other stakeholders with regard to an ordinance (int. no. 1362-2019), which would ban the sale of vapor products in flavors other than tobacco or “flavorless.” CASAA provided the following written testimony to the committee.

This ordinance may come up for a vote in the near future. We urge all New York City residents to take action NOW by sending a message to your city council member urging them to reject this dangerous proposal. You can send your message by clicking here.

If you would like to watch the entire committee hearing, you can find it here.

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January 30, 2019

Testimony of Alex Clark, CEO, CASAA

New York City Committee on Health

RE: Int. No. 1362-2019 Prohibiting the sale of flavored electronic cigarettes.

Chairman Levine and distinguished members of the committee,

I am writing on behalf of our more than 2000 members in New York City to express our concerns and extreme opposition to Int. No. 1362-2019. This ordinance is a hasty reaction to an emotionally fueled issue that is only being made worse by well-meaning, but misguided attempts to prevent youth use of tobacco and nicotine products.

The proposal to ban the sale of vapor products sold in flavors other than tobacco will deny people who smoke access to the most popular low-risk smoking replacement product in generations. Focusing solely on a particular feature of vapor products ignores other aspects of these products that people find enjoyable–a key factor in helping smokers make the switch and dramatically improve their health. Moreover, we believe it is a mistake to focus on the issue of flavors to the exclusion of underlying factors affecting youth use. Socioeconomic status, trauma, peer pressure, stress, depression, and a natural inclination toward taking risks all motivate young people to experiment with potentially harmful coping strategies.

The leading indicator of whether or not a young person will smoke is if they live with a parent who smokes. New York City can do more to promote healthy behaviors among young people by encouraging parents who smoke to switch completely to a low-risk smoke-free alternative. In order to achieve a rapid and enduring transition to safer nicotine products, people who smoke will need to have access to products they enjoy, which necessitates the availability of a diverse range of flavored smoke-free products. For these and the following reasons CASAA is urging the Committee on Health to reject Int. No. 1362-2019.

Int 1362-2019 will deny people who smoke vital tools to helping them quit smoking

• A ban on flavored vapor products will force vapor shops in NYC to close.

We defer to data being presented by owners of vapor businesses in New York City with regard to the percentage of sales of devices, e-liquid, and accessories, but it is our understanding that a majority of sales involve e-liquid in flavors other than tobacco. To date, we are unaware of any retailer or manufacturer that sells a popular line of unflavored e-liquid. It is unlikely that specialty vapor retailers will be able to remain open if they are restricted to selling just vapor devices and tobacco flavored e-liquid. It is the diversity of vapor products that both supports independent businesses and provides a customizable experience to people who are attempting to transition to a smoke-free lifestyle.

Vapor product specialty shops (vape shops) play a vital role in helping smokers switch to a low-risk alternative

Vape shops are a source of peer-to-peer support that is not effectively replicated by current tobacco control strategies.. Vape shops provide knowledgeable staff who offer individualized attention to help customers find a device and eliquid flavor that will help them successfully make the switch. Just as importantly, vape shops provide a space for peer-to-peer support for people who used to smoke and people who are transitioning to a smoke-free product.

By way of background, vapor retailers and manufacturers in the United States are prohibited by federal law from marketing e-cigarettes as smoking cessation products or even less harmful than cigarettes. Customers, however, are bound by no such law. It is not uncommon to hear customers exchange successful quit smoking stories between one another in a vape shop. To the casual observer, sharing such a story might not seem like much, but between people who are recovering from a multiyear or multi-decade cigarette addiction, it can mean the difference between living a smoke-free life or returning to the devil they know.

By comparison, vapor retailers in the United Kingdom are not subject to the same limitations on marketing communication in face-to-face transactions. Research conducted in the UK demonstrates that people who shop for vapor products in specialty vapor shops have a remarkable quit rate of >40% after 12 months. Other than quitting “cold turkey,” no other smoking cessation intervention comes close to the success rate found in the UK. And while the retail environment studied in the UK is not a 1:1 match with vapor shops in the United States, when we consider customer to customer interactions within the retail environment, which are not regulated by federal law, it stands to reason that the results found in the UK may be generalizable to consumers in the United States.

Banning flavors will pressure consumers and retailers to take unnecessary risks

• Motivations to “do it yourself.”

Motivations for people to manufacture vapor products at home for personal use (“do it yourseIlf” or “DIY”) are related to saving money and customizing the experience. If flavors are banned, a significant number of individual consumers will turn to DIY in order to maintain access to vapor products they enjoy. Responses to consumer surveys regarding bans on various vapor products indicate as much. Indeed, the origins of the vapor industry trace back to people DIYing at home because they were unsatisfied with the products that were available at the time (circa 2008-2012).

In general, when following basic safety and sanitation protocols, DIYing at home is relatively safe. However, in the hands of novices, DIYing can present some risks. If New York City moves to adopt this ordinance, the city would be creating a situation where people who vape (or people who smoke who might attempt to switch to vaping) will be pressured to attempt DIYing e-liquids at home, possibly without the patience, knowledge, and experience to take the basic necessary precautions to ensure safety. Even more concerning, this ordinance will create a new underground, unregulated market where consumers have no assurances of product quality and no means of recourse should they be the victims of fraud or injury related to poorly manufactured products.

The unintended consequences outweigh hypothetical gains

For the foregoing reasons we respectfully urge the Committee to reject Int. No. 1362-2019.

Recommendations

• We urge the Committee to refocus their attention on the most pressing concern of reducing the early death and disease attributed to smoking.
• Effective substance use prevention starts by empowering young people with strong social skills and healthy coping strategies. People are generally resourceful and, historically, find ways around prohibitions on tobacco, drugs, and alcohol. Strong life skills training during adolescence has a greater potential to positively shape a young person’s life well into adulthood.
• New York City needs to reevaluate the effectiveness of existing laws that restrict access to, and use of, tobacco and vapor products before enacting new laws that enact more extreme prohibitions. At the state level, New York consistently spends only a small fraction of the amount recommended by the Centers for Disease Control on tobacco prevention. Arguably, the state hasn’t given existing tobacco prevention strategies a chance to succeed.
• Current state and federal law prohibits sales of any tobacco or vapor product to anyone under 18-years-old. New York City, New Jersey, and neighboring counties prohibit sales to anyone under 21-years-old. Part of fully funding tobacco prevention programs must include funding for compliance inspections and enforcement of minimum sales age laws. Although CASAA is opposed to setting the minimum legal sales age for smoke-free tobacco and nicotine products at 21, we assert here that if the City of New York believes in the policy, then compliance and enforcement should be fully funded.