San Francisco became the first city in the country to ban the flavored liquids used in e-cigarettes, unwilling to wait for the Food and Drug Administration to take federal action. And New York state is not far behind.
San Francisco voters approved a ban on liquids that come in flavors such as cotton candy and cookies and cream, while New York’s state legislature is considering a similar ban. Activists and lawmakers say flavored e-liquids can entice minors to take up e-cigarettes.
The local push comes as the use of e-cigarettes has soared among middle and high-school students. The latest federal National Adult Tobacco Survey found that e-cigarettes are the most commonly used tobacco product among that demographic, with 2.1 million of them using e-cigarettes last year.
E-cigarettes convert a liquid often containing nicotine into a vapor that is inhaled, a process called vaping. Retailers sell a variety of flavors that range from mint or menthol to cotton candy and chocolate.
The push for local bans comes as Congress is demanding the FDA do more to crack down on use of e-cigarettes among minors. It is illegal under federal law to sell e-cigarettes to people under 18.
[Related: FDA warns companies about enticing kids with e-cigarette flavors]
Rep. Nita Lowey, D-N.Y., has chided FDA Commissioner Scott Gottlieb for not doing enough to curb e-cigarette use among minors. “I am concerned that FDA’s silence on e-cigarettes could open the door to the next public health emergency,” Lowey said during an April hearing.
Gottlieb responded that the agency is cracking down. Since then, the agency has warned more than 40 retailers that sell Juul Labs’ brand e-cigarettes to minors.
The agency targeted Juul because its products are harder for parents or teachers to detect, Gottlieb has said. Another major issue is that the product is very popular with kids.
[Opinion: Despite JUUL crackdown, vaping is still (way) safer than smoking]
But the FDA has not sought an outright ban on flavors in e-cigarette liquids, which the agency says is a key driver.
Instead, the agency started seeking comments from the public in March on the role of flavors in becoming addicted to tobacco products. The deadline to submit comments is in July.
“The troubling reality is that e-cigarettes are the most commonly used tobacco product among middle and high school students, and flavors are identified as one of the top three reasons for use,” Gottlieb said in March.
So while the agency ponders what to do, cities and states are taking action.
The FDA said a state or locality may restrict tobacco use. The 2009 law that gave the agency the authority to regulate tobacco products preserved the ability for states and localities to pursue their own regulations.
San Francisco voters decided 68 percent to 31 percent to approve a ban on the sale of flavored tobacco products. The ban, which survived a $11 million opposition effort from tobacco giant R.J. Reynolds, includes menthol cigarettes as well as vaping liquids.
Anti-smoking advocates cheered the vote as a sign of things to come.
“The San Francisco vote gives a powerful boost to growing efforts around the country to end the sale of flavored tobacco products,” read a statement this month from Matthew Myers, president of Campaign for Tobacco-Free Kids.
The city’s board of supervisors approved the ban last year but enough signatures were raised to put the measure onto a ballot.
No states have adopted a ban, but that could change with a measure in New York advancing in the state assembly. The bill now goes to the state senate.
New York already banned vaping in public areas last year, joining 10 states that have taken up similar bans.
The American Vaping Association, which has been fighting state and federal regulations, says the ban on flavors is misplaced.
“We know from numerous studies that non-tobacco flavors are critical to helping adult smokers make the switch to far less hazardous alternative products,” association President Greg Conley told the Washington Examiner.
He said activists likely will find more success with bans at the local level as lawmakers “are much more likely to be swayed by children repeating talking points fed to them by adults. State legislators are much more likely to think before acting on bans of legal products.”
