Vaping Under Attack: How States Are Cracking Down on Harm Reduction

In recent years, several U.S. states have ramped up their efforts to regulate tobacco and nicotine products, with a particular focus on flavored ENDS products. These initiatives are typically designed to reduce the use and appeal of nicotine and tobacco products to youth. However, emerging research suggests that such bans may inadvertently harm adult smokers who rely on - or merely prefer flavored alternatives to help them reduce and quit smoking traditional cigarettes. 

In recent years, an increasing number of U.S. states and municipalities have enacted or proposed legislation banning flavored vape products to curb youth usage. Nine states (California, Colorado, Connecticut, Delaware, Florida, Massachusetts, New Jersey, New York, and Rhode Island) have taken action to restrict or ban all flavored tobacco products, including flavored e-cigarettes and menthol cigarettes. In addition, nearly 400 localities have restrictions on the sale of flavored tobacco products, with some also restricting menthol cigarettes.  

History reminds us that when popular products are removed from the regulated market, consumers seek alternatives. Perhaps the best-known example is that of alcohol in prohibition-era America. The war-on-drugs also reminds us that bans do not eliminate consumer demand. In 2009, the United States banned flavored cigarettes, which ultimately led to an increase in alternate flavored product use such as flavored cigar use (Courtemanche et al., 2017).  Removing the option for legal flavored e-cigarette use could lead to an increase in illegal and unregulated flavored products and continued cigarette use (Kulick et al., 2016). 

Beyond flavor bans, some states are also increasing taxes on alternative vapor products. By raising taxes, these products become less affordable, making it harder for cigarette smokers to switch to alternative products. The average U.S. smoker is often low-income (smoking prevalence is 41.1% in men below the poverty level), which makes them less likely to spend money to try new, more expensive alternative products (Centers for Disease Control and Prevention, 2019; Hitchman et al., 2014). This is particularly the case with products that are associated with an addiction: consumers contemplating alternatives, especially those operating on limited budgets, may be unsure whether they will be satisfied by a product that is different from those with which they are familiar (and – often – dependent). Increasing  taxes on alternative products may therefore deter would-be quitters from switching, and may even send those dual- or poli-users and those who recently quit smoking back to combustibles. Others, more committed to the safer product class may seek illicit products in response to taxes and regulatory restrictions; trying to find the products and product-characteristics that they have grown accustomed to. But the products of the illicit market have no regulatory oversight and the illicit market offers no opportunities to assure product standards. Unlike those operating in the regulated market, illicit vendors have little or no incentive to ID patrons. Thus, the public health and consumer welfare harmed from this response count against any benefits generated by the originating policy.   

Such responses are not only a matter or historical fact. In states expecting to implement flavor restrictions consumers have also indicated that they would engage in these and similar responses (Romm et al., 2022).  

As well as leading to a proliferation of unregulated products and impeding smoking cessation, these restrictions present another challenge: Regulations limiting RRPs also make it more difficult for researchers examining the patterns and consequences of consumer behavior across the national population as a whole.  The FDA has asked PMTA applicants to provide candidate product-specific data that is generalizable to the U.S. population. One type of research ARAC conducts assesses whether a candidate product can provide a population benefit by reducing cigarettes per day or eliminating cigarettes among people who smoke across the U.S. Due to the state and locality flavor bans, it is nearly impossible to recruit a full geographic sample of the United States population and to conduct representative studies with flavored nicotine alternatives. 

Given the significant challenges posed by state and locality flavor bans, it is crucial to consider research exemptions that allow for the conduct of studies representative of the U.S. population. By granting exemptions, researchers can better assess whether candidate products offer population benefits, such as reducing or eliminating cigarette use among smokers nationwide. This approach would enable the recruitment of a full geographic sample and facilitate representative studies with flavored nicotine alternatives.