The California Crusade Against Tobacco Flavors: From Foolish to Dangerous

Today the California Globe published my oped on the foolish and dangerous legislative effort to ban flavored tobacco products.  Read it here or on the Globe website.

“Crusades typically start out by being admirable, proceed to being foolish, and end by being dangerous.” Russell Baker used these words in a 1994 New York Times column describing the anti-tobacco crusade, noting that the holy war was entering the last stage. Now, 25 years later, California legislators are fighting their own crusade—against the so-called teen vaping “epidemic”—with a proposed ban on flavored tobacco products.

First, let’s examine the “epidemic.” Authorities generously define “current use” of any drug by children as at least once in the past month. The FDA, using this definition in a national survey, reported that vaping among American high school students increased substantially in 2018. The FDA was only telling part of the story; about half of those kids had vaped five or fewer days, the equivalent of trying products at a party. And most frequent e-cigarette users are not virgins with respect to cigarette smoking; most of them have smoked in the past.

Drug use by underage children is a serious matter. That makes it entirely baffling that California legislators ignore higher rates of alcohol and marijuana use among high schoolers, facts that have been known for decades. These behaviors have nothing to do with flavors, but instead demonstrate that kids are attracted to adult behaviors and products.

The FDA promotes the myth that a teen vaping epidemic is caused by unscrupulous manufacturers and retailers. This isn’t true, especially in California, where the violation rate in FDA inspections was only 4% in 2018, one of the lowest in the country (here and here).

Since retailers aren’t the problem in California, a ban on flavored tobacco products isn’t the solution. This is harassment without reason. Even advocates of alcohol prohibition 100 years ago didn’t try to ban flavors.

A flavor ban is supposed to stop kids from using nicotine, but is that a worthwhile objective? Nicotine, while addictive, is not the cause of any diseases associated with smoking. It is as safe to consume as caffeine, another addictive drug used daily by millions of adults and teens.

Because nicotine is so safe, prohibitionists fabricate hazards. One frequent claim is that nicotine can harm teenage brains. That may be a legitimate argument – for laboratory mice. If it was true for humans, then 40 million current smokers – and even more former smokers – who started as teens and smoked for decades would have demonstrable brain damage. There is no scientific evidence of such injury, nor to support the claim of youth brain risk. If California legislators want to protect children’s brains, they should ban football, as there is unequivocal evidence linking concussion-producing sports activities to chronic traumatic encephalopathy (here, for example).

A flavor ban will not affect vapers who make their own vaping liquids. This segment of the market is already large and growing; a few examples can be found here, here and here. A ban might cause the current retail market to fracture in two: one segment selling concentrated, unflavored nicotine liquids, and another selling flavors. A high-tax jurisdiction like Chicago, where a prohibitively high per-milliliter tax is imposed on nicotine liquids, demonstrates what happens when the market is bifurcated.  Vape shops there sell 30 ml bottles of zero-nicotine e-liquids (no tax) and small concentrated bottles of high-strength nicotine that are taxed.  Flavor bans will simply encourage consumers to purchase flavorless e-liquids, and then buy flavoring that is widely available in grocery stores and online, such as here and here.

Unintended Consequences

A flavor ban would create unintended consequences. Flavors would no longer be supplied by legitimate companies. Instead, do-it-yourselfers would be adding flavors with unknown chemistry to concentrated nicotine solutions. It is worth noting that the only known death attributable to vapor products in the U.S. resulted from a young child accidentally ingesting pure nicotine.

Politicians routinely ignore another basic economic fact: bans drive black markets. Economists and legal scholars use the terms “bootleggers” (black market retailers) and “Baptists” (legislators and other misguided do-gooders), calling them “unlikely allies from the tobacco wars [who] try to fight off a game-changer [e-cigarettes].”

Two years ago, California was already the sixth biggest cigarette black-market state. Legislators should not create a bootlegger paradise for flavored tobacco, when they haven’t even solved the bootleg marijuana problem. The legislature legalized cannabis in 2016, but retained high taxes; the black market is now worth $3.7 billion, four times the legal market. The same rush to stigmatize vaping will doubtlessly create a black market in this category, as well.

The California crusade to ban flavors isn’t just foolish, it’s dangerous. With the exception of menthol, the ban will have the least impact on sales of cigarettes, the deadliest tobacco products. But it will remove from retail shelves many more smoke-free products – including e-cigarette liquids, dip, chew and snus. These products are vastly less hazardous than cigarettes. Imagine if alcohol opponents had only banned flavors during Prohibition. Beer, wine and other flavored spirits would have been eliminated, leaving only pure alcohol on retail shelves. That policy would have been an abject failure, as would any similar ban on flavored tobacco products.

Australia: Tobacco Control and Bootlegger Paradise

Australia is the darling of anti-tobacco extremists.  They tout that country as the model for draconian cigarette regulation and taxation.  Australia imposed mandatory plain packaging last December, and exorbitant excise taxes have raised the price of a pack of cigarettes to 16 Australian dollars (AUD). 

A new report (here) from KPMG tracks the effect of these policies on smoking prevalence and consumption.  The unintended consequences remind one of America’s Prohibition Era fiasco.

KPMG compares Australia’s exorbitant per-pack prices with those of other countries in the region (all in AUD), including Cambodia (1.12), Vietnam (1.08), Indonesia (1.43), Thailand (3.07) and Papua New Guinea (5.37).  It comes as no surprise that these differences have created a huge illicit market in Australia, accounting for about 13% of all cigarette consumption. 

The Aussie black market offers smokers an array of smuggled products.  Counterfeit cigarettes are inferior products manufactured offshore and packaged to resemble popular brands.  KPMG also identifies a type of contraband cigarette called “illicit white” which is produced specifically for smuggling.  One such brand, Manchester, is so popular that it has a market share of 1.3%.  In 2012, Manchester was only found in Sydney and Melbourne; this year it was available in 13 of the 16 cities surveyed by KPMG. 

I discussed earlier this year how prohibitive policies and prices in New York (population 20 million) have cost the state a quarter billion dollars that wound up in criminal hands (here).  In Australia (population 23 million), the toll is larger: KPMG estimates that the government has lost $1 billion in excise taxes to the black market.

In their popular book Freakonomics Steven Levitt and Stephen Dubner argue that “Morality…represents the way that people would like the world to work – whereas economics represents how it actually does work.” (emphasis in original) 

Australia’s treatment of smoking as a moral issue has resulted in Prohibition-Era tobacco policies and real-world economic consequences.

Three Must-Read Articles Supporting Tobacco Harm Reduction

These outstanding recent publications belong in every tobacco harm reduction library. 

1.  Dr. Lynn Kozlowski on e-cigarettes

Kozlowski, dean of the School of Public Health at the University at Buffalo, has published an excellent article in the Huffington Post (here) encouraging smokers to switch to e-cigarettes and encouraging the FDA to use light-touch regulation to keep e-cigs on the market and competitive with deadly cigarettes. 

Kozlowski is a giant in the tobacco research field and a long-time advocate of harm reduction.  He noted in 1984 (abstract here) and 1989 (abstract here) that smokeless tobacco conferred fewer risks to users and therefore might serve as an effective substitute for cigarettes.  He argued in 2003 that there was little evidence that smokeless use was a gateway to smoking, because the majority of users never smoke or smoked cigarettes prior to using smokeless (abstract here), and he has argued persuasively that smokers have a fundamental human right to accurate information about safer forms of tobacco use (abstracts here and here).

2.  Christopher Snowdon on tobacco harm reduction

Snowdon, author of Velvet Glove, Iron Fist: A History of Anti-Smoking (2009, available here), has published a devastating critique of the resistance to tobacco harm reduction in Europe (read it here).  He writes that “The sale of the two least hazardous recreational nicotine products – e-cigarettes and Swedish snus – are banned in many countries despite growing evidence that they can play an important role in reducing the smoking rate…The prohibition of safer tobacco products has led to unnecessary deaths in the European Union and elsewhere.  It is highly likely

that the prohibition and excessive regulation of e-cigarettes will also lead to unnecessary premature deaths.”

Snowdon argues that “The neo-prohibitionist approach is unjustifiable from the perspective of both personal liberty and population health.”  Although he focuses on the European snus ban and the strangulation of e-cigarettes by the EU tobacco directive, Snowden excoriates the FDA for making the designation of smoke-free tobacco products as “reduced risk” dependent on impossible-to-obtain proof that they won’t adversely affect population health.

3.  Thomas Lesnak on the booming cigarette black market

Lesnak, recently retired from the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), writes in the Daily Caller (here) that the cigarette black market is worth $10 billion.  “That is the widely accepted figure our government estimates is lost each year from tobacco trafficking schemes,” he notes.

I recently described New York City as a “prohibition prison” (here); Lesnak agrees.  He writes, “When politicians say that increasing taxes lowers smoking rates, what they aren’t saying is that higher costs have driven a large percentage of the market – disproportionately youth smokers – to illicit cigarettes.  Millions of New Yorkers now reside within a short walk or a cab-ride from smoke shops that sell 200 cigarettes in plain plastic bags for $10.  Referred to as ‘rollies’ or ‘baggies,’ they feature no health warnings, and produce no tax revenue…Today, it is estimated that 60 percent of the cigarettes sold in New York City are illicit.  Most of these cigarettes are smuggled in from low-tax states like Virginia, North Carolina and Maryland.”

Lesnak correctly diagnoses the problem: “we’re criminalizing tobacco smokers, small and family retailers, and our youth, who are now forced into buying illicit products.  If these sound reminiscent of the failures of Prohibition, it’s because these are the same problems we faced early in the last century as a result of those similarly veined, well-intended policies.  We know exactly how that experiment turned out.  And yet, politicians continue to ignore those lessons.”

Unfortunately, the former federal agent also ignores the lessons of Prohibition and recommends the wrong treatment: “…stiffer penalties, well-funded enforcement, and stronger cooperation among agencies, as well as state and local governments.”  Such measures make the black market more violent and destroy government credibility.  There is little enthusiasm in America for penalizing personal behaviors, especially those that are enjoyed by millions of people.  Instead, politicians should eliminate prohibitive tobacco taxes, legislation and regulation.

New York City: Prohibition Prison

New York Mayor Michael Bloomberg’s 2003 prison smoking ban produced a pervasive black market, where single cigarettes cost inmates $30, and a pack runs as high as $200, according to the New York Daily News (here).

That might sound shocking, but I predicted those unintended consequences nine years ago in a column for the Las Vegas Review-Journal, after the California State Assembly imposed a state-wide prison tobacco ban.

February 5, 2004

California, Cigarettes and Prisons: Ban Smoking, Not Tobacco

Brad Rodu

Special to the Las Vegas Review Journal

On January 26 the California Assembly passed a bill that would ban all tobacco products in state prisons (Assembly Bill No. 384).  According to sponsor Tim Leslie (R-Tahoe City), the bill “is a win, win, win for California.”  But the ban may be a loser for everyone else concerned, including prisoners, staff and the prison system. 

According to Leslie, about 80,000 California prisoners smoke.  At 1½ packs per day and $3 a pack, prison sales of cigarettes in California is worth $131 million.

  

One hundred million dollar markets just don’t disappear with the stroke of a legislative pen.  They transform, and often in ways that don’t please prison officials.

First, the California prison system will lose the revenue generated by sales of legal tobacco products.  But over-the-counter revenue lost is under-the-table revenue gained, as smuggling takes over and entrepreneurs compete for the lucrative tobacco market.  In Colorado prisons, where tobacco prohibition was instituted four years ago, an $11 can of Bugler loose tobacco generates $5,000 in hand-rolled cigarettes—a 45,000% markup.  In other words, the Colorado ban spawned an instant black market serviced by prisoners and their families, guards, teachers and supervisors.  Officials have conducted 154 investigations – at considerable additional cost -- and made dozens of arrests.  All because Colorado officials chose in effect to ban nicotine, the consumption of which is absolutely legal everywhere in the US except behind bars.

 

Absolutely legal.  And almost absolutely safe.  Nicotine is among the most powerful of addictive substances, but it is not the reason that smokers die.  In fact, nicotine itself is about as safe as caffeine, another widely consumed addictive drug.  It is the other 3,000 agents in tobacco smoke that are responsible for the diseases that kill smokers.  Smokers who switch permanently to other, safer forms of nicotine, including smokeless tobacco products, live longer and healthier lives and don’t pollute the air around them.

           

There is a very simple alternative to a complete ban on tobacco and nicotine: corrections officials should offer smokers alternatives in the form of smokeless tobacco.  Smokeless tobacco satisfies smokers and serves as an effective permanent substitute, because it rapidly delivers a dose of nicotine comparable to that from smoking.  For comparison, nicotine medications provide only about one-third to one-half the peak nicotine levels of tobacco products, which is unsatisfying for many smokers.  In addition, medicinal nicotine is expensive and designed to be used only temporarily.  All of these reasons are why nicotine replacement has a paltry 7% success rate among American smokers.

Smokeless tobacco use is vastly safer than smoking, which is entirely consistent with the stated health goal of Leslie’s bill.  Our research documents that smokeless use imposes only about 2% of the risk of smoking.  The only consequential adverse health effect from long-term smokeless tobacco use is oral cancer, but even this risk is much lower than that associated with smoking.  In fact, the average reduction in life expectancy from life-long smokeless tobacco use is only 15 days, while the average smoker loses almost 8 years.  For further context, the risk of death from long-term use of smokeless tobacco (12 deaths in every 100,000 users per year) is about the same as that from automobile use (15 deaths in every 100,000 users per year).

Newer smokeless tobacco products deliver the nicotine kick smokers crave and they can be used almost invisibly.  Spitting, once the stigma of smokeless tobacco use, is nonexistent with these products.  New products are neatly packaged as wafers or small pellets of tobacco.  Some modern products are the size of breath mints and completely dissolve during use, leaving no tobacco residue.

    

Data from Sweden show that smokeless tobacco can easily substitute for smoking.  For 50 years men in Sweden consistently have had the lowest smoking rate and the highest smokeless tobacco rate in Europe.  The result:  Rates of lung cancer – the sentinel disease of smoking – among Swedish men have been the lowest in Europe for 50 years.  World Health organization statistics reveal that Swedish men have the lowest rates of lung cancer among 20 European countries.  In the US smokeless tobacco is already working for many Americans. Statistics from the Centers for Disease Control and Prevention (CDC) show that 1.5 to 2 million former smokers have chosen this option on their own.

In summary, when prison systems provide smokeless tobacco as a substitute to inmates who smoke, they accomplish several goals.  First, they promote the health of smokers by offering a cigarette substitute that is 98% safer for users (because smokers who switch to smokeless tobacco reduce their risk for all smoking-related illnesses, including mouth cancer).  Second they ensure the health of nonsmoking inmates and staff (because passive smoke is eliminated).  Third, they restore the prison tobacco market to its rightful balance, in which revenue from tobacco sales is removed from the black market and returned to the correctional facility.  In other words, corrections officials can meet both health and fiscal goals by providing an environment that is smoke-free, not necessarily nicotine and tobacco-free.

Unfortunately local, state and federal officials have blindly embraced tobacco prohibition.  Mayor Bloomberg’s policies have made New York City a tobacco prison, with cigarette prices, at $12-15 a pack, the highest in the nation.  Now he wants to prohibit cigarette sales to anyone under 21 years of age (here), which will force more of today’s legal consumers to the black market.

Half of the cigarettes sold in New York State are illegal, shifting a quarter billion dollars of government revenue to criminals  (updated link here). 

Prohibitionists love to claim the moral high ground, but they are bootleggers’ best friends.