E-cig­a­rette ban gets le­gal re­view

State drops pro­posed regs on fla­vored e-cig­a­rettes as lawyers vet their le­gal­ity

Albany Times Union - - FRONT PAGE - By Bethany Bump

New York’s Depart­ment of Health has re­scinded reg­u­la­tions that sought to ban fla­vored e-cig­a­rettes and liq­uids af­ter in­dus­try in­sid­ers raised con­cerns over their le­gal­ity.

The reg­u­la­tions, pub­lished Wed­nes­day in the State Reg­is­ter, pro­posed a ban on the pos­ses­sion, man­u­fac­ture, dis­tri­bu­tion or sale of fla­vored e-cig­a­rette liq­uid or prod­ucts across the state, in an ef­fort to curb youth con­sump­tion of the prod­ucts, which have risen to epi­demic lev­els in re­cent years, ac­cord­ing to the U.S. Food and Drug Ad­min­is­tra­tion.

Once pub­lished, they would have gone through a 60-day pub­lic com­ment pe­riod, at which point the state health depart­ment would be free to en­act the reg­u­la­tions. But less than 24 hours af­ter the reg­u­la­tions were pub­lished, the depart­ment re­scinded them.

Richard Az­zopardi, a spokesman for Gov. An­drew Cuomo, said that was be­cause the health depart­ment wanted to do one more round of le­gal re­view on the reg­u­la­tions and plans to re­file them shortly.

“As the gov­er­nor pre­vi­ously said, he’s very con­cerned about the rise

in youth e-cig­a­rette use and this ad­min­is­tra­tion is look­ing to do every­thing it can to curb this emerg­ing pub­lic health is­sue,” he said.

Va­p­ing ad­vo­cates said the reg­u­la­tions were re­scinded be­cause they wouldn’t with­stand le­gal scru­tiny, and ex­pressed doubt that amended reg­u­la­tions would ei­ther.

“If it’s a proper le­gal re­view, they will never see the light of day again,” said Gre­gory Con­ley, pres­i­dent of the Amer­i­can Va­p­ing As­so­ci­a­tion, a non­profit ad­vo­cacy group.

He said the reg­u­la­tions were an at­tempted en­drun around sim­i­lar, failed leg­is­la­tion that’s come be­fore the state Leg­is­la­ture for sev­eral years now.

The most re­cent bill, spon­sored by Demo­crat Linda Rosenthal in the As­sem­bly and Repub­li­can Kemp Hannon in the Se­nate, pro­posed a ban on the sale and dis­tri­bu­tion of fla­vored e-liq­uid for use in e-cig­a­rettes. But it’s lan­guished in the com­mit­tee process of both cham­bers.

Con­ley said the pro­posed health depart­ment reg­u­la­tions likely con­sti­tute ex­ec­u­tive over­reach be­cause they usurp the law­mak­ing power of the Leg­is­la­ture. He pointed to the 1987 case of Bo­re­ali vs. Ax­el­rod, in which the state Supreme Court de­cided New York’s Pub­lic Health Coun­cil could not ban smok­ing in­doors — not be­cause to­bacco smoke wasn’t bad, but be­cause the au­thor­ity to ban it lay with the Leg­is­la­ture.

“There’s been a fla­vor ban be­fore the Leg­is­la­ture in New York,” Con­ley said. “They haven’t acted on it. There was no di­rec­tive from the Leg­is­la­ture to the depart­ment say­ing, en­act a ban or shut down vape shops. They clearly didn’t en­gage ex­perts on this.”

Michael Fren­nier, pres­i­dent of the New York State Va­p­ing As­so­ci­a­tion, said the lob­by­ist for his trade as­so­ci­a­tion reached out to the gov­er­nor’s of­fice af­ter the reg­u­la­tions were pub­lished to ex­press con­cerns over their le­gal­ity.

A ban on fla­vored prod­ucts, he said, would be dev­as­tat­ing to the nearly 700 vape shops around the state and their 2,700 em­ploy­ees.

“Ninety-eight per­cent of vape is fla­vors,” he said. “It just is.”

Va­p­ing liq­uids can be nico­tine-free or con­tain vary­ing amounts of the addictive chem­i­cal found in tra­di­tional to­bacco cig­a­rettes. Still, va­p­ing crit­ics are con­cerned about the health im­pacts from chem­i­cals present even in nico­tine-free va­p­ing prod­ucts.

The de­bate over fla­vors is a trou­bling one for va­p­ing ad­vo­cates. They rec­og­nize their ap­peal to young peo­ple, they ad­mit. But they also say a ban on fla­vors would harm the mil­lions of Amer­i­cans each year who try to quit smok­ing. Fla­vors have come to play an im­por­tant role in the psy­chol­ogy of quit­ting smok­ing, Fren­nier said.

“I’m a re­formed smoker,” he said. “I haven’t had a cig­a­rette in eight years. And I don’t want any­thing that tastes like a cig­a­rette any­more, which is why I en­joy my va­por with a nice fruity fla­vor.”

They also dis­pute broad claims that sug­gest eci­garettes are a gate­way to tra­di­tional smok­ing.

In the reg­u­la­tions posted Wed­nes­day, the state Depart­ment of Health noted an “as­tound­ing” rise in e-cig­a­rette use among high school­ers since it be­gan track­ing such data — from 10.5 per­cent in 2014 to 27.4 per­cent in 2018.

It also noted con­cern about the as­so­ci­a­tion be­tween e-cig­a­rette and tra­di­tional cig­a­rette use, cit­ing a re­cently pub­lished Na­tional Academy of Science, En­gi­neer­ing and Medicine re­port. That re­port con­cluded there is sub­stan­tial ev­i­dence that use of e-cig­a­rettes among young peo­ple in­creases the risk of us­ing tra­di­tional cig­a­rettes, and mod­er­ate ev­i­dence that it in­creases the fre­quency and in­ten­sity of that sub­se­quent cig­a­rette use.

State health of­fi­cials also noted in the reg­u­la­tions that for the first time in re­cent his­tory, they have recorded an uptick in tra­di­tional cig­a­rette smok­ing among youth in the state, from a record low 4.3 per­cent in 2016 to 4.8 per­cent in 2018.

“Ev­i­dence ex­ists that use of e-cig­a­rettes could re­verse the long-stand­ing de­cline in com­bustible cig­a­rette use and re­verse the pub­lic health ben­e­fits that New York state has achieved,” the reg­u­la­tions said.

One im­pe­tus for im­pos­ing a ban via reg­u­la­tions, the pro­posal stated, was the lack of ac­tion on the FDA’S part.

Mean­while, the Washington Post re­ported on Thurs­day that the FDA is plan­ning to an­nounce a ban next week on fla­vored e-cig­a­rettes in re­tail stores and gas sta­tions around the coun­try. That news comes af­ter in­creas­ing pres­sure and scru­tiny of Juul, an overnight startup suc­cess whose e-cig­a­rettes re­sem­ble USB flash drives, which are now nearly ubiq­ui­tous among teens.

The Amer­i­can Lung As­so­ci­a­tion ap­plauded New York’s at­tempt to ban fla­vored prod­ucts, but thinks it should go even fur­ther, ban­ning all fla­vored cig­a­rette and to­bacco prod­ucts, in­clud­ing men­thol fla­vors.

“From our per­spec­tive it’s im­por­tant that New York move for­ward be­cause, un­for­tu­nately, we’ve seen many de­lays from the FDA over the years,” said Michael Seil­back, na­tional as­sis­tant vice pres­i­dent of state pub­lic pol­icy for the as­so­ci­a­tion. “If New York has the op­por­tu­nity to act, it should act.”

Will wal­dron / Times Union

New York’s Depart­ment of Health has re­scinded pro­posed reg­u­la­tions seek­ing to ban fla­vored e-cig­a­rettes and e-liq­uids such as th­ese fla­vored e-liq­uids dis­played at Exs­cape Smoke Shop on Fri­day on western Av­enue in Al­bany.

Will Wal­dron / Times Union

JUUL elec­tronic cig­a­rettes are dis­played at Exs­cape Smoke Shop on Fri­day on Western Av­enue in Al­bany. Some ar­gue th­ese help smok­ers quit to­bacco. Crit­ics aren’t so sure.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.