Bills
| 3.23.22

Should Flavored E-Cigarettes be Banned? (S. 2519)

Do you support or oppose this bill?

What is S. 2519?

(Updated December 9, 2021)

This bill — the Ending New Nicotine Dependencies (ENDD) Act of 2019 — would ban e-cigarettes from containing flavors other than tobacco. It would also require standards on e-cigarettes’ permissible designs and issue guidance for manufacturers to implement such standards. 

Additionally, this bill would monitor the public health risks associated with the use of tobacco products, including e-cigarettes. The Dept. of Health and Human Services (HHS) would conduct a public awareness campaign to educate the public about the health implications of e-cigarette use. 

Finally, this bill would apply the existing tobacco excise tax to e-cigarettes.

Argument in favor

Flavored e-cigarettes and vape products are too appealing to youth, creating a new generation of nicotine addicts. This is a public health emergency, and banning flavored e-cigarettes — which often cause teens to try e-cigarettes out of curiosity about the flavors — would go a long way in helping stop this epidemic.

Argument opposed

The vape-related hospitalizations that have occurred in recent months are related to black market products, not vapes generally. In light of this information, this bill isn’t needed. It would unnecessarily punish vape companies and vape users by banning flavored e-cigarettes, harming both the industry and those who turn to e-cigarettes as an alternative to traditional cigarettes.

Impact

E-cigarette and vape users; e-cigarette and vape manufacturers; e-cigarette and vape designs; HHS; and tobacco excise tax applicability to e-cigarettes.

Cost of S. 2519

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Mitt Romney (R-UT) introduced this bill to regulate e-cigarette standards and protect public health by prohibiting non-tobacco flavors and ensuring that electronic nicotine delivery systems are tamper-proof: 

“With nearly a quarter of high school students vaping regularly, we must take decisive action to prevent a new generation from addiction and serious health risks. Let’s begin by passing legislation which ensures that non-tobacco flavored vaping products are removed from the market and prevents vaping devices from being adulterated with hazardous substances. The ENND Act will address both of these concerns, as well as apply the existing tobacco excise tax to e-cigarettes and use it to launch a public awareness campaign.”

Original cosponsor Sen. Jeff Merkley (D-OR) adds: 

“Vaping companies have hooked millions of our children on nicotine using e-cigarette flavors like ‘gummy bear,’ ‘scooby snacks,’ and ‘strawberries and cream.’ This means massive health consequences for the next generation, and we have to end this addiction crisis. We need to get these flavors off the market. In addition, refillable cartridges are an invitation to hazardous concoctions, and we need to get them off the market too. That’s exactly what our bill does. The federal government should have done this long ago, and we should take these actions now without delay.”

In a video tweeted out by Sen. Romney, Sen. Merkley also explains why this bill requires cartridges to be tamper-proof: 

“These cartridges that can be refilled are a huge temptation to put in other fluids into the cartridges, like THC oil and THC oil that has been diluted by other substances which can be incredibly risky, and maybe responsible for many of the illnesses and many of the deaths that we've seen.”

Some have raised the suspicion that extra liquids could be added to vape cartridges by either users or third parties unknown to the manufacturers. They have suggested that these additional liquids could be the cause of the severe respiratory illnesses that have sent large numbers of vape users to hospitals.

The Campaign for Tobacco-Free Kids supports this bill. Its president, Matthew L. Myers, says: 

“We applaud Senators Romney and Merkley for working to protect kids from e-cigarettes. Their bill properly focuses on addressing both the lung disease issues and the epidemic of youth use of these products. This is an issue that requires bold, urgent action. We are delighted to be working with them during the legislative process to help find the best possible solutions to both of these problems.”

Pediatrician and medical journalist Dr. Alok Patel points out that flavored e-cigarettes have a very different appeal for youth and non-smokers versus adult smokers turning to vape products as an alternative to cigarettes:

“Adult vapors appreciate flavors in the same way anyone would appreciate variety in a frozen-yogurt store. But also not surprisingly, flavors appeal the most to younger users. Data from the national longitudinal Population Assessment of Tobacco and Health (PATH) study, show that 85 percent of current e-cigarette users ages 12–17 use flavored versions of e-cigarettes compared to 63 percent of adults ages 25 and older. The differentiation lies in motivation. Adults users, as advertised by the industry, turn to e-cigarettes to transition away from combustible tobacco. On the other hand, a majority of teens and even adults with no previous smoking history are attracted foremost by the flavors. On this note, one has to wonder if adult smokers who are serious about transitioning sincerely need flavor options such as ‘unicorn puke,’ ‘sweet tarts’ and ‘crème brulee’ in order to make the leap. These flavors may help, but there has to be a trade-off given what we know motivates youths to try vaping.”

The Trump administration announced plans to ban all non-tobacco e-cigarette flavors in early September 2019. In mid-September 2019, First Lady Melania Trump tweeted the latest CDC data on teen vaping, saying, “it’s our responsibility as parents to understand the dangers that come from vaping. Our Administration supports the removal of flavored e-cigarettes from stores until they’re approved by @US_FDA.”

On September 11, 2019, the U.S. Food and Drug Administration (FDA) announced plans to finalize a compliance policy to prioritize the agency’s enforcement of the premarket authorization requirements for non-tobacco flavored e-cigarettes, including mint and menthol. The planned policy would clear the market of unauthorized non-tobacco-flavored e-cigarette products. Under this policy, the FDA plans to leave tobacco-flavored e-cigarettes on the market for the eight million adults who use e-cigarettes to quit smoking (the FDA has embraced e-cigarettes as a less harmful way for smokers to satisfy their nicotine addiction as compared to cigarettes).

Former HHS Secretary Alex Azar said of the policy: 

“The Trump Administration is making it clear that we intend to clear the market of flavored e-cigarettes to reverse the deeply concerning epidemic of youth e-cigarette use that is impacting children, families, schools and communities. We will not stand idly by as these products become an on-ramp to combustible cigarettes or nicotine addiction for a generation of youth.” 

The American Vaping Association has criticized proposals to ban flavored e-cigarettes. In mid-September 2019, the organization’s president, Gregory Conley, said a flavored e-cigarette ban would “remove life-changing options from the market.” Similarly, the Vaping Technology Association (VTA) warns, “if a federal flavor ban is enacted, more than 10 million adults will be forced to choose between smoking again [...] or finding what they want on the black market.”

The vaping industry also says that bootleg, black market THC cartridges, not legal vapes, are behind cases of injury associated with vaping. In a September 27, 2019 tweet, the American Vaping Association wrote that people “are being sent to the hospital because of bootleg contaminated THC cartridges, not nicotine vaping products.”

Some in Sen. Romney’s home state of Utah oppose this bill. Beau Maxon, owner of a vape store in Park City, Utah, says this bill is “irresponsible,” constitutes “government overreach” and would be “intolerable” for his business. 

This legislation has two Democratic Senate cosponsors.


Of Note: As of October 1, 2019, the Centers for Disease Control and Prevention (CDC) reported 1,080 lung injury cases associated with using e-cigarette or vaping products. These cases covered 48 states and one U.S. territory, and included 18 deaths across 15 states.

All sick patients reported a history of using e-cigarette or vaping products, and most reported a history of using THC-containing products. Approximately 70% of patients were male. Many patients were young, as about 80% were under 35 years old, 16% were under 18 years old, and 21% were 18-20 years old. Patients ranged in age from 13 to 75 years old, and their median age is 23 years old.

While its investigation is ongoing, the CDC recommends that individuals refrain from using e-cigarette or vaping products, particularly those containing THC, and that vaping products shouldn’t be purchased off the black market. It also suggests that, regardless of the ongoing investigation, youth and young adults shouldn’t use e-cigarette or vaping products.

Preliminary data from the CDC’s annual National Youth Tobacco Survey shows that 27.5% of high school students reported using an e-cigarette in the past 30 days (up from 20.8% in 2018 and 11.7% in 2017). The three most popular flavors were all non-tobacco: more than 60% of teens who vaped said they used fruit, menthol, and/or mint flavors. 

Public health advocates say flavored e-cigarettes have erased years of progress in reducing smoke rates among minors, and that they’re getting a new generation addicted to nicotine. They argue that JUUL — which makes easy-to-hide devices with flavored pods in flavors like mango and mint — is a major culprit behind this trend. 

Several states and cities have already banned e-cigarettes. As of September 11, 2019, Michigan, San Francisco, and Boulder, Colorado had banned flavored e-cigarettes. As of October 31, 2019, Los Angeles County, Ohio, Massachusetts, and New York had followed suit.

Billionaire and former New York City mayor Michael Bloomberg has also pledged $160 million to help enact similar restrictions across the country. 


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / danchooalex)