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.

Broad Tobacco-Related Insurance Premiums Are Unjustified & Injurious

I recently received this email:

“I am a 29 year old male from Upper Michigan, married with 3 kids.  My wife and I recently signed on with [company name redacted] as this was one of the only affordable health care options for our family and I like most all of their ‘principles’ or values.

“Only 1 problem; they require that you don't use any drugs, drink, smoke, chew, nothing.  I consider myself a healthy individual as I'm 6'3", 200 lbs and fit. I haven't seen a doctor in years, frankly because I haven't a need.  I don't use drugs, drink, or smoke. However, I've chewed Copenhagen snuff for about 15 years and never had a problem with it. I was the one who had 2, maybe 3 small dips each day, a can would last me a week. It was never excessive and never a problem.

“For the sake of [company] I quit chewing snuff a few months ago. Since I quit, I've noticed I'm short tempered with my wife and kids.  My performance at work has decreased, and I started gaining weight, and losing sleep. I think about it every day, and I feel no better without it. I feel like [company]'s penalty is harsh for dipping.  And they penalize the same for smoking or other hardcore drugs that I'd never do.

 
“I found you online, and I admire your courage to speak the truth about smoking and chewing.

“Please let me know if you can help educate my health ‘insurance’ company on the truth about chewing tobacco. Any help is appreciated.”
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This narrative is not unusual; over the years, I have received numerous similar complaints.  Many smoke-free tobacco users are pioneers; my research group published a study about them in 1995, and I have also told their stories in this blog. 
 
Unfortunately, smoke-free tobacco users continue to suffer from policies that consider all tobacco products – even medicinal nicotine – as equally dangerous, and all tobacco/nicotine users as high-risk.  This conflation of risks improperly raises premium costs, limits employment opportunities and degrades the quality of smoke-free tobacco users’ lives.  It also provides a financial windfall for insurers.
 
The federal government and health organizations often promote this conflation, and Obamacare legislation codified it, defining “smoking” as “using any tobacco product on average four or more times per week in the past six months.” (emphasis added)  It may be justifiable to charge smokers higher premiums, because they are at risk for many diseases that health insurance must cover and, on average, their lives will be shortened by 8-10 years, justifying higher life insurance premiums.  But use of smoke-free tobacco products which are associated with minimal or no added health risks should not incur such punitive premium treatment.
 

Many tobacco consumers avoid higher premiums by lying about their lifestyle choice.  Research shows that “tobacco users may be decreasingly likely to report their tobacco use status accurately to avoid surcharges” when enrolling in Healthcare.gov exchanges.  The problem for these individuals is that insurers and employers commonly require urine tests, which readily detect nicotine as long as three to four weeks after use. However, these tests do not distinguish how nicotine entered the body – via smoking or the use of smoke-free tobacco or medicinal nicotine.
  
As a health professional, I do not condone deliberate misreporting of tobacco use on insurance applications.  However, I do oppose the degradation of smoke-free tobacco users’ quality of life for no legitimate reason.

FDA Approves PMI’s IQOS Heat-Not-Burn Tobacco For U.S. Sales

Today the FDA approved Philip Morris International’s heat-not-burn tobacco system for sale in the U.S., saying in an agency press release:

“Following a rigorous science-based review through the premarket tobacco product application (PMTA) pathway, the agency determined that authorizing these products for the U.S. market is appropriate for the protection of the public health because, among several key considerations, the products produce fewer or lower levels of some toxins than combustible cigarettes. The products authorized for sale include the IQOS device, Marlboro Heatsticks, Marlboro Smooth Menthol Heatsticks and Marlboro Fresh Menthol Heatsticks.”

The FDA approval was issued two years (alternatively, 1 million smoker deaths) after PMI’s application, which is about a year and a half past the agency’s own deadline.  IQOS is only the second product approved under the PMTA pathway.  The first was in 2015 for eight General snus products from Swedish Match. 

The FDA action is both good and bad news for e-cigarette and vapor manufacturers and retailers.  The good news is that the PMTA process works.  The bad news is that it took years, and hundreds of millions of research dollars, for PMI to obtain this approval.  By 2022 manufacturers and retailers, who already sell tens of thousands of e-cigarettes and vapor products but don’t have the resources of PMI, will be required to submit PMTAs to the FDA, or risk having them ordered off the market.