Michelle Minton Testimony on Flavored Tobacco Products

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Chairman Davis and members of the Committee:

Thank you for giving the public an opportunity to provide input as you consider this proposal. I sincerely hope you listen to the testimony you’ll hear today from consumers, business owners, and experts in the field, like me. My name is Michelle Minton. I am a Senior fellow with the non-partisan think tank the Competitive Enterprise Institute where I have dedicated my career to the study of consumer risk regulation. As an expert on consumer policy, as a Maryland resident, and someone who cares about public health, I urge you not to repeat the mistakes of our past. I urge you not to enact a new prohibition on e-cigarette flavors.

If there is one thing I’ve learned over my 13-year career that I hope you’ll take away from my testimony, it is this: prohibitions don’t work. They have never and will never work. Policies meant to save people from the perils of their own choices, whether through taxation, restrictions on products, or outright bans do not make people better of. In fact, as well-meaning as they may be, bans invariably backfire, causing people to engage in riskier behaviors.

We have seen this over and over again, yet we never seem to learn. Alcohol prohibition did not save people from excessive alcohol consumption: it led to harder drinking, speakeasies, funneled billions of dollars to organized criminals, and left many dead from tainted bathtub liquor. 

New York hasn’t banned cigarettes, but has made them prohibitively expensive through taxation. As it always does, the black market rose to meet the demand for cheaper cigarettes and now more than 60 percent of cigarettes sold in the state are from illegal sources. Not only is law enforcement incapable of preventing tobacco bootlegging, attempts to stop it have only resulted in tragedies, such as the death of Eric Garner, the Staten Island man choked to death by police who believed he was selling untaxed cigarettes.

Marijuana prohibition didn’t stop people from using pot. Attempts to enforce the law caused incalculable harm, primarily to lower income communities and people of color, while doing not to stop the rise of drug cartels and the creation of an enormous global cannabis black market. It was this very black market that caused the outbreak of lung injuries we saw over the summer. Most of those injured lived in states without legal marijuana or were not of age to legally purchase it so they relied on the black market which has zero quality control and no incentive to verify customers’ age. As a result, nearly 3,000 people were hospitalized by THC vaping products tainted with vitamin E acetate and 60 people are dead.

Instead of recognizing this outbreak as a failure of prohibition, activists used the outbreak and public confusion around it, to compel state legislatures to enact bans on nicotine e-cigarettes; products that had nothing to do with it.

Restrictions on nicotine e-cigarettes that ban certain devices, nicotine strengths, or flavors will do nothing to prevent another outbreak. It will also not address the other reason proponents assert for removing flavors from the market; the so-called “epidemic” of youth vaping.

First, there is no youth vaping epidemic. Despite the headlines, the vast majority of youth who report using e-cigarettes are not using them habitually. Analysis of the 2018 survey data shows that just 7 percent of students reported vaping five or more times in the last month. Of those who reported vaping more than five times a month, only 0.4 percent were never users of tobacco.[1] That is not an epidemic.

Epidemic or not, we should seek out ways to discourage adolescents from initiating nicotine use through e-cigarettes. A flavor ban will also fail to achieve this goal because flavors are not the reason youth vape. According to the CDC, the number one reason youth say they vape is curiosity.[2] In the United Kingdom, where e-cigarettes are embraced as a means of reducing harm for adult smoker and available in every imaginable flavor, youth uptake of vaping is almost nonexistent. But, in the United States, it is clear why adolescents have become so curious about these devices with an endless flood of headlines and multimillion-dollar campaigns telling them one thing: vaping is for adults only and even though all your friends are doing it, you shouldn’t.  One doesn’t need a degree in child psychology to see why this backfired.

Nobody is suggestion that youth vaping should be ignored. It shouldn’t, but the rate of use among adolescents and the relatively low-risk associated with e-cigarettes do not justify stripping adults of access to products that could save their lives. And e-cigarettes can save lives.

This is no longer a controversial statement as the evidence is clear. Though we may not know the exact amount of risk e-cigarettes pose in the long-term, we know that this is far lower than with combustible tobacco. We also know that e-cigarettes are an effective smoking cessation option, with trials showing they are at least twice as effective as nicotine replacement therapy.[3] And flavors are one of the main reasons they are so effective.

Despite absurd claims that adults don’t like flavors, the vast majority of adult vapers use non-tobacco flavors. More importantly, adults who successively switch from smoking to exclusive vaping are more likely to use fruit, desert, and candy flavored e-cigarettes and research even shows that the number of flavors regularly used by a vaper is independently associated with smoking abstinence. [4]^,[5] Flavors work because, in addition to making vaping pleasurable, they also help users disassociate the effects of nicotine from the taste of tobacco. As result, relapsing is less appealing, increasing users’ intention and self-efficacy to stay smoke-free.[6]

Banning e-cigarette flavors won’t stop youth vaping, but will put at risk the more than 250,000 Maryland adults who rely-on e-cigarettes to stay smoke free.[7] The ban will significantly reduce the effectiveness and appeal of e-cigarettes for adults, causing fewer to switch from smoking and many to relapse back to smoking or turn to non-legal substitutes.

Some will make their own liquid at home. Thanks to YouTube tutorials, it is fairly simple to figure out how to do this safely. However, more people making homemade e-liquid will mean more homes with liquid nicotine concentrate. No doubt, this will result in more cases of accidental poisoning as children get their hands-on uncapped nicotine concentrate. This is exactly what happened in 2014 when a one-year-old died after drinking the bottle of nicotine that his mother used to make her own e-cigarette liquid in their New York.[8] 

Those less inclined toward DIY will turn to the black market where consumers will be presented with products of uncertain origin and quality. Some may not even be aware that what they are buying is counterfeit, as happened after Juul voluntarily removed some of its flavors from the market and knockoff versions—produced in China—made their way onto store shelves in America.[9] If all flavored e-cigarettes are banned, there will be a massive influx of illegal cartridges, more cases of illness, and more deaths related to tainted products.

I urge the members to seriously consider the consequences of this proposal. Smoking costs the state of Maryland nearly $3 billion dollars a year in health care costs and claims the lives of 7,500 residents every year.[10] Our public health goal should not only be focused on the unknown risks e-cigarettes may pose to youth, but also on reducing the death and disease caused by smoking. Thankfully, smoking (among adults and youth) is lower now than it has ever been. But, if e-cigarettes can help reduce this rate by any amount, as the evidence indicates they can, we ought to do everything in our power not to squander that opportunity. Every new rule or law that makes e-cigarettes less attractive or less accessible means more deaths from smoking. 

If you are serious about reducing tobacco-related harm for both adolescents and adults you should reject proposed laws that would deter smokers from switching to lower risk products and push consumers into black markets. Instead, we should employ the strategies that have worked for other adult products, such as gambling, alcohol, and marijuana: stricter age verification requirements, responsible advertising standards, treatment over criminalization, and enforcement of existing laws.  These approaches would address the youth vaping issue without producing the unintended consequences that always go hand-in-hand with prohibition.

I sincerely urge you to reject this proposal and find an approach that doesn’t sacrifice the lives of adult Marylanders to the imagined threat e-cigarettes pose to youth.

Thank you for your time,

Michelle Minton

Senior Fellow, Competitive Enterprise Institute

202-331-2251

[email protected]