E-cigarette ban gets legal review
State drops proposed regs on flavored e-cigarettes as lawyers vet their legality
New York’s Department of Health has rescinded regulations that sought to ban flavored e-cigarettes and liquids after industry insiders raised concerns over their legality.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 But less than 24 hours after the regulations were published, the department rescinded them.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Vaping advocates said the regulations were rescinded because they wouldn’t withstand legal scrutiny, and expressed doubt that amended regulations would either.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.”