Congress is expected to vote on whether to ban the sale of all flavored tobacco products. Should the current text of H.R. 2339 be enacted into law, it would be the most far-reaching prohibition since the ban on alcohol. Flavored e-cigarettes, menthol cigarettes, smokeless tobacco, and cigars, would all be made illegal. Despite its massive implications for public health, the economy, and law enforcement, the proposed federal law has received little scrutiny.
By far, the most significant bans are the prohibitions on flavored e-cigarettes and menthol cigarettes. These provisions would prove both detrimental to public health and pose substantial problems from law enforcement.
Banning e-cigarette flavors would increase smoking.
E-cigarettes can be divided into two broad categories, closed- and open-system products. Closed systems are typically sold in convenience stores, use pods or cartridges, and include the market leader Juul and products like Vuse—made by the tobacco giant R.J. Reynolds.
Open-system products are manually filled with e-liquid and typically sold in specialty vape shops. In January 2020, the Food and Drug Administration (FDA) exercised its enforcement discretion to ban the sale of all non-tobacco flavors in closed-system products except menthol. Flavors sold for open-system e-cigarettes were allowed to remain on the market, as their prohibition would’ve ended this entire product category. The tobacco age was also raised to 21 to reduce the prevalence of underage vaping, Congress claimed.
Around 80 percent of the entire e-cigarette market consists of flavored products, according to Morgan Stanley. Banning all e-cigarette flavors would be a death sentence for open-system products. Open-system e-cigarettes are not sold by traditional tobacco companies and are the least likely to be used by young people. A flavor prohibition would hit all e-cigarette producers. Still, e-cigarettes made by traditional tobacco companies in tobacco flavors would survive a flavor ban, but their competition would largely be eliminated. Industry estimates say 100,000 jobs would be lost and more than 10,000 small businesses would likely shut down.
Prohibition would also severely undermine public health.
Medical bodies, both in the United States and Europe, have concluded beyond doubt that e-cigarettes are safer than combustible cigarettes, with claims to the contrary frequently debunked by public health experts. A widely-publicized study claiming e-cigarettes increase the risk of heart attacks was recently retracted by the Journal of the American Heart Association. According to researchers at Georgetown University, if every adult smoker in America switched to vaping over the next decade, 6.6 million lives could be saved.
E-cigarette flavors are essential to realizing this goal, as they are the overwhelming choice of adult smokers who switch to vaping. Studies have shown that those who use non-tobacco flavors are more likely to be successful at quitting smoking than those who don’t. E-cigarettes as a category have been consistently shown to be more effective than nicotine replacement therapy in helping smokers quit.
Banning the remainder of flavored products on the market would have predictable consequences. According to a study conducted by researchers at the Yale School of Public health, “a ban on flavored e-cigarettes would drive smokers to combustible cigarettes, which have been found to be the more harmful way of getting nicotine.”
The authors add that banning e-cigarette flavors “reduces the appeal of e-cigarettes to those who are seeking to quit (smoking); e-cigarettes have proven useful as a cessation device for these individuals, and we find that quitters have a preference for flavored e-cigarettes.”
Michael Siegel, professor of community health sciences at Boston University’s School of Public Health, argues against the ban, noting, “By creating barriers to a much healthier product, these laws will simply force former smokers to return to cigarette smoking.”
Between three and five million U.S. adults have switched exclusively from smoking to vaping. The ban on flavors could send a significant portion of these former smokers back to smoking, and millions of smokers who would’ve have switched to vaping will no longer do so.
Flavors are not the key driver of youth vaping.
According to a survey by the Centers for Disease Control and Prevention (CDC), flavors are not the leading reason why young people use e-cigarettes. More than 75 percent of youth who vape give reasons other than flavors when asked to list the reasons they use e-cigarettes. The number one reason young people try vaping is “curiosity,” with the second being a “friend or family member used them,” and flavors coming a distant third at 22 percent, which is the same number of people who say they vape because “I can use them to do tricks.”
These results hold at the state level as well, according to data from the Youth Risk Behaviour Surveillance System (YRBSS). Unlike adults, experimentation and peer influences are the primary reasons for youth e-cigarette use, which is similar to alcohol. Just as the availability of flavored alcohol or marijuana products does not predict underage drinking or drug use, neither do flavored e-cigarettes.
Prohibition would increase the use of contaminated and unregulated products.
Last year, there was a troubling outbreak of vaping-related lung illnesses and deaths. Upon further investigation, the CDC concluded these illnesses are overwhelmingly associated with the use of bootleg THC products, which were often cut with vitamin E acetate. Prohibition can end the legal supply of a product, but it cannot eliminate the demand for that product — as we saw for decades in the marijuana market. Banning e-cigarette flavors would spark an illicit market that grows to serve the millions of vapers currently using e-cigarette flavors and would like to continue doing so. The federal ban could also drive some consumers, particularly young people, to try more harmful products such as unregulated THC products, which were the cause of thousands of injuries and more than 60 deaths.
Banning menthol cigarettes would be unnecessary and discriminatory.
The alleged case for prohibiting menthol cigarettes mirrors that of flavored e-cigarettes. Critics claim menthol cigarettes are especially attractive to young people. It’s also argued that menthol cigarettes have an especially detrimental effect on African Americans.
But the data doesn’t stand up to scrutiny. Menthol cigarettes are no more prevalent among youth than non-menthol cigarettes. Analysis conducted by Reason Foundation shows that states with higher volumes of menthol cigarettes, relative to regular cigarettes, have the lowest youth smoking rates. In terms of disparate impact, it’s certainly true that of African Americans who smoke, youth and adults, the majority smoke menthol. But African American teenagers are less likely to smoke cigarettes than whites or Hispanics. As for adults, African Americans smoke at the same rate as whites.
Banning the cigarette of choice of African Americans is arbitrary. On purely public health grounds, if legislators had to choose between prohibiting menthol or non-menthol cigarettes, banning non-menthol cigarettes would have a more significant public health outcome.
But given the popularity of menthol among African American smokers, any action taken to clamp down on a subsequent illicit market would have a disproportionate impact on this community. As a result, the National Organization of Black Law Enforcement Executives (NOBLE), National Association of Black Law Enforcement Officers (NABLEO), Law Enforcement Action Partnership (LEAP), and the National Newspaper Publishers Association (NNPA), are among the groups that have made the case that menthol prohibition would negatively and disproportionately affect communities of color.
Youth smoking is at a historic low.
It’s a bit bizarre that Congress is pushing for this ban at the same time that the youth smoking rate is at the lowest level ever recorded — 5.8 percent. The number of young people smoking menthol cigarettes daily is so small that the federal government cannot reliably measure it.
And even the Surgeon General’s 2020 report on smoking cessation couldn’t justify the ban Congress is considering: “The evidence is suggestive but not sufficient to infer that restricting the sale of certain types of tobacco products, such as menthol or other flavored products, increases smoking cessation, especially among certain populations.”
Menthol prohibition would be a radical and discriminatory experiment, that promises few to any public health gains.
The ban that Congress is considering would be terrible public policy. It would drive people away from vaping and towards smoking, hurting public health. It would create black markets while destroying small vaping businesses and much of the industry. And it would unfairly target African American communities. With youth smoking already at record lows, hopefully, lawmakers will come to their senses.