ALBANY (TNS) — As New York works to ban the sale of flavored e-cigarettes, a growing number of advocates are calling on the state to go one step further and ban all flavored tobacco products on the market, including menthol cigarettes.
It’s a step only one other state has taken. Massachusetts Gov. Charlie Baker signed legislation late last year that bans the retail sale of all flavored tobacco products, including nicotine-containing e-cigarettes, menthol cigarettes and flavored chewing tobacco.
“If you take some flavored products off the market but leave others you’re basically putting a sign on those products that says, ‘Kids, this way in,’ ” said Kevin O’Flaherty, director of advocacy for the Campaign for Tobacco-Free Kids’ New York region. “We should act across the board and get rid of all flavored products.”
He pointed to the partial ban the Trump administration just enacted. That ban covered the sale of most flavored e-cigarette pods such as those made popular by industry giant Juul, but left on the market flavored e-liquids used in open tank systems. It also contained a loophole that has caused disposable, single-use “puff” pens to explode in popularity, he said.
This whack-a-mole effect has existed since before e-cigarettes became popular, O’Flaherty said.
When Congress banned the sale of all flavored cigarettes except menthol in 2009, youth use of menthol cigarettes and other flavored tobacco products such as cigars and chewing tobacco rose. Flavors are just inherently appealing to kids, he said, and companies know it.
“When you look at what’s happening with e-cigarettes, these kids are becoming addicted to higher levels of nicotine than you would even find in cigarettes,” he said. “There’s a lot of evidence now that kids who start vaping are much more likely to start smoking combustible cigarettes. So we risk losing all the progress we’ve made over the past 30 years if we do nothing.”
New York Gov. Andrew Cuomo has attempted to ban flavored e-cigarettes using emergency regulatory powers, but was sued by the vaping industry which successfully blocked the ban from taking effect.
Now, lawmakers are hoping to enshrine a ban into state law. A bill sponsored by Sen. Brad Hoylman and Assemblywoman Linda Rosenthal would ban all flavored e-cigarettes, including menthol.
The menthol loophole
Advocates are using this moment of heightened concern around youth vaping to urge lawmakers not to create another “menthol loophole” for e-cigarettes and to close the loophole that’s already on the books when it comes to combustible cigarettes.
Dozens of advocacy groups, including the American Lung Association, American Heart Association and African American Tobacco Control Leadership Council (AATCLC), showed up to the state Capitol this week to lobby lawmakers on the issue.
“They wanted to keep menthol cigarettes on the market and they did,” said Carol McGruder, co-chair and founding member of the AATCLC, who flew in from California to meet with legislators. “Now we’re seeing the same thing happen with e-cigarettes. They want another menthol carveout.”
A number of states and municipalities pursuing flavor bans have exempted menthol. Cuomo’s regulatory ban on flavored e-cigarettes initially contained a menthol carveout on the advice of state Health Commissioner Howard Zucker, who said he didn’t want to harm ex-menthol smokers who had turned to menthol e-cigarettes to quit.
After blowback from public health and parent groups, who noted the flavor’s popularity among young people, he came back and recommended menthol be included once the state’s legal fight over the ban concludes.
McGruder said it’s important lawmakers ban combustible menthol cigarettes once and for all, too. Menthol cigarettes are heavily marketed in poor neighborhoods and communities of color. Use among black people has soared as a result.
“These products were dumped in our neighborhoods and given away to children as young as 9 years old,” she said. “We are living the legacy of this predatory marketing and we need protection from the tobacco industry.”
People of color have mixed feelings about menthol cigarette bans.
Many believe it could become the new stop-and-frisk — a policy that enabled police to stop anyone on suspicion they may be dangerous and that led to disproportionate detentions of black and Latino people.
Rev. Al Sharpton has emerged as a vocal critic of menthol cigarette bans, arguing they will fuel black-market sales and increase interactions between black people and police. He has cited Eric Garner, the New York City man who was killed by police after a stop for allegedly selling loose cigarettes.
Many in the black community are critical of Sharpton’s position, noting the nonprofit he founded, National Action Network, has received donations from tobacco giant R.J. Reynolds.
“The tobacco industry has cynically latched onto legitimate concerns in the African-American community regarding police brutality, and we’ve had to counter that,” McGruder said.
She said anti-tobacco advocates are working overtime to remind people that the proposed menthol bans would ban retail sales, not individual possession. She said they’re also fighting for a package of legislative reforms that would take menthol products offline and also provide services for smoking cessation and stress reduction.
“New York is very important in this fight,” she said. “New York and California are the two bookmark states. Where they go the rest of the country follows.”
Legislators in California are pursuing a similar ban.