Nicotine - Banning Flavors - Opposition

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Flavored nicotine products are currently a hot issue. This page will look at why some people / organizations oppose flavor bans.

Civil Rights and Civil Liberty Advocates Discuss the Issue


  • While this legislation is a well-intended effort to address health issues associated with tobacco use among youth, we have concerns that a blanket prohibition on menthol and other flavored tobacco products, which will apply to adults, will (1) disproportionately impact people and communities of color; (2) trigger criminal penalties, prioritizing criminalization over public health and harm reduction; and (3) instigate unconstitutional policing and other negative interactions with local law enforcement.
  • Signed by:
    • American Civil Liberties Union
    • Center for Popular Democracy
    • Drug Policy Alliance
    • Friends Committee on National Legislation
    • Law Enforcement Action Partnership
    • National Action Network
    • National Association of Criminal Defense Lawyers

Harm Reduction Advocates Discuss the Issue


  • Written by: Lindsey Stroud, Tobacco Harm Reduction 101
  • In April 2018, the ban on flavored e-cigarettes and vapor products went into effect in San Francisco and in January, 2020, the city had implemented a full ban on any electronic vapor product. Unfortunately, these endeavors have failed to lower youth tobacco and vapor product use.
  • Although addressing youth tobacco and vapor product use is laudable, existing evidence continues to show that flavor bans don’t work and in fact, threaten harm reduction options for millions of American adults that have used e-cigarettes to quit smoking.

Journalists / Writers / Media Discuss the Issue

2021, Mar 23 - Vermont’s Dilemmas in Bid to Ban Both Flavored Vapes and Menthol Cigarettes

  • The implications are two-fold: First, a ban on menthol cigarettes, as we’ve seen with prohibitions of flavored vapes in Massachusetts and New York, would probably force consumers to an illicit market where they use these products without regulatory protections; and second, such laws would be enforced, potentially increasing the number of interactions between police and people of color.

2019, Oct 2 - The National Vaping Ban is a Bad Idea

  • Bans likewise encourage illegal markets, and products in illegal markets tend to be more dangerous to their consumers. The “Iron Law of Prohibition,” states that the more intensive the law enforcement efforts against something, the more potent (if not dangerous) the product or activity becomes. Given the ban, vapers will risk acquiring illicit products that may have more kick from nicotine (or an illicit drug) and be more potent than their legal and regulated counterpart. During Prohibition, gin and whiskey, rather than beer, was preferred by smugglers and consumers alike because it provided more buzz at a lower cost.

Law Enforcement Representatives Discuss the Issue

???? - Black Law Enforcement Group Questions FDA Menthol Ban

  • “NOBLE has serious concerns about the unintended consequences of a ban, which we believe would precipitate a robust and troubling illicit market. The possibility of a ‘black market’ economy in menthol cigarettes demands study,” said Jessie Lee, NOBLE executive director, in a press statement. “We urge the Advisory Committee to properly study the potential ramifications of banning menthol.
  • Le continued, “NOBLE is also concerned that enforcement activities could lead to inequities in law enforcement in African American communities.”

2020, Jul 9 - Orange County Coalition of Police & Sheriff’s (OC Cops)

  • "While I’m sure your goals are well intended, the 100% ban on menthol cigarettes and flavored tobacco (exception for hookah) products to adults makes impracticable sense and it will multiply an already large illegal market in California, reward criminal smugglers, and cost California businesses, workers, and taxpayers billions of dollars. Banning flavored products will further criminal smuggling and tax evasion problems."

2019, Dec 18 - Banning flavored tobacco will create problems for law enforcement, ex-State Police leader says

  • I believe that New Jersey’s flavor ban legislation is a well-intended health policy that unfortunately is at odds with public safety. It opens a back door to the creation of interstate smuggling organizations and spurs the growth of illegitimate local markets profiting from the sale of outlawed tobacco products. For law enforcement, concerns are very real. And they’re not just blowing smoke.

2019, Nov 4 - Flavor ban will feed illegal tobacco sales, stores say

  • A retired federal law enforcement officer joined convenience store owners Wednesday to caution against legislation banning menthol cigarettes, which he said would lead to an increase in crime and divert resources away from fighting the opioid epidemic.
  • “I’m not here to talk about smoking, I’m here to talk about crime. Because that’s what’s going to happen right now if we begin these flavor bans and we begin attacking the marketplace,” Rich Marianos, who served 27 years at the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, said at a City Hall Plaza rally.

Public Officials Discuss the Issue

2017, Dec 20 - Re: a framework for considering the appeal of flavors in nicotine products

  • Contains a letter and an attached memo
  • Sent to: Dr. Scott Gottlieb, MD - Commissioner United States Food and Drug Administration
  • Signed by:
    • Thomas J. Miller - Attorney General of Iowa, Des Moines, Iowa, United States
    • David B. Abrams PhD - Professor. Department of Social and Behavioral Sciences, NYU College of Global Public Health. New York University, United States
    • Clive D. Bates - Director, Counterfactual, London, Former Director Action on Smoking and Health, London, United Kingdom
    • Raymond S. Niaura PhD - Professor. Department of Social and Behavioral Sciences, NYU College of Global Public Health, New York University, United States
    • David T. Sweanor J.D. - Adjunct Professor, Faculty of Law, Centre for Health Law, Policy & Ethics, University of Ottawa, Canada

Public Policy and Think Tank Representatives Discuss the Issue

2021, Feb 9 - Maryland Should Reject Unfair and Ineffective Flavored Tobacco Ban

  • Guy Bentley - Reason Foundation
  • When politicians consider adopting a new law, they rarely have the opportunity to examine a controlled experiment showing the results from nearly the exact policy they are proposing being put to the test. Maryland has such a chance. All it needs to do is look at Massachusetts.
  • There are criminal justice reform reasons, public health justifications, and financial facts that show why Maryland should reject an unfair and ineffective flavored tobacco ban.

2019, Oct 3 - Conservative Groups Urge President Trump To Protect Vapers from Flavored Product Ban

  • Your administration can keep e-cigarettes out of the hands of teenagers without jeopardizing the great accomplishments that have been made in public health through the availability of vapor products for adults. We urge you to immediately halt the FDA’s planned actions that will limit choices for millions of American adults who rely on flavored vaping products to quit smoking. More than 100,000 jobs and the lives of 34 million adult smokers are on the line.
  • Signed by:
    • Grover Norquist - President, Americans for Tax Reform..........................................Phil Kerpen - President, American Commitment
    • Daniel Schneider - Executive Director, American Conservative Union.............................Steve Posiask - President, American Consumer Institute
    • Ryan Ellis - President, Center for a Free Economy..............................................Jeff Stier - Senior Fellow, Consumer Choice Center
    • Thomas Schatz - President, Citizens Against Government Waste...................................Seton Motley - President, Less Government
    • Michelle Minton - Senior Fellow, Competitive Enterprise Institute..............................Brent Mead - CEO, Montana Policy Institute
    • Katie McAuliffe - Executive Director, Digital Liberty..............................Daniel J. Erspamer - President, Pelican Institute for Public Policy
    • Jason Pye - Vice President of Legislative Affairs, FreedomWorks....................Carrie Wade - Director of Harm Reduction Policy, R Street Institute
    • Sal Nuzzo - Vice President of Policy, James Madison Institute...................................Paul J. Gessing - President, Rio Grande Foundation
    • Annette Meeks - CEO, Freedom Foundation of Minnesota....................................Guy Bentley - Director of Consumer Freedom, Reason Foundation
    • Naomi Lopez - Director of Healthcare Policy, Goldwater Institute...........................David Williams - President, Taxpayers Protection Alliance
    • Mario H. Lopez - President, Hispanic Leadership Fund................................Ashkhen Kazaryan - Director of Civil Liberties, TechFreedom
    • Michael LaFaive - Senior Director of Morey Fiscal Policy Initiative, Mackinac Center for Public Policy
    • Becky Norton Dunlop - Senior Official, Reagan Administration and Member of the Trump Transition Team
    • James L. Martin and Saulius “Saul” Anuzis - Founder/Chairman and President, 60 Plus Association
    • Julie Gunlock - Director of Center for Progress and Innovation, Independent Women’s Forum

Trade Organizations / Representatives Discuss the Issue

What Does the Science Say? Do Flavors Have Any Value?

2023: The impact of flavored e-cigarette bans on e-cigarette use in three US states.

  • Note comments by Clive Bates [CB:]
  • A pre-print examining the effect of flavor bans on adult e-cigarette use in 3 states (Washington, New Jersey, and New York), finding quite a bit of retailer noncompliance and consumer circumvention of the ban:
    • Results: After the ban, 8.1% of respondents (N=1624) quit using e-cigarettes, those primarily [using] banned menthol or other flavors declined from 74.4% to 50.8, those using tobacco-flavored declined from 20.1% to 15.6%, and those using non-flavored increased from 5.4% to 25.4%... Of those primarily using banned flavors, 45.1% obtained e-cigarettes from in-state stores, 31.2% from out-of-state stores, 32% from friends, family, or others, 25.5% from Internet/mail sellers, 5.2% from illegal sellers, 4.2% mixed flavored e-liquids themselves, and 6.9% stocked up on e-cigarettes before the ban.
    • Conclusions: Most respondents continued to use e-cigarettes with banned flavors post-ban. Compliance of local retailers with the ban was not high, and many respondents obtained banned-flavor e-cigarettes through legal channels. However, the significant increase in the use of non-flavored e-cigarettes post-ban suggests that these may serve as a viable alternative among those who used previously used banned or tobacco flavors.
  • A strength of this paper is looking at the many different ways that consumers were able to circumvent the flavor ban. Some of those are likely less possible now (e.g. with the shipping ban on e-cigarettes), but it’s striking how many options there are.
  • The big question of course, is did this drive people to smoking?  The study didn’t directly examine this, but makes a case for indirectly saying this isn’t a concern: only 8.3% of adult e-cigarette users quit post-ban, and these people were less likely to currently smoke – the implication being that if the ban drove anyone to smoke, it would be a small percentage. I’m not so sure though: I can’t tell if smoking status was collected at follow-up (post-ban) or only pre-ban (I get the sense it was only collected once, otherwise why not directly look at smoking status at follow-up?). Additionally, since smoking frequency and quantity weren’t collected, it can’t be ruled out whether dual users smoked more after the ban. [CB: OMG missing out on reporting smoking outcomes is quite a weakness]
  • It is also puzzling the very high (at least post-ban) percentage who report using non-flavored e-cigarettes. Non-flavored products are essentially negligible: e.g. FDA’s recent publication on US sales data finds that flavors that could not be classified (i.e. not tobacco, menthol, mint, fruit, candy, sweet, or ambiguous/ concept” flavors) accounted for <0.1% of sales. The data in the current study are self-reported and I wonder how many who report using “non-flavored” are actually using tobacco flavor (which is often treated as the ‘default’ flavor). This would complicate things, because tobacco-flavored and non-flavored use went in opposite directions after the ban. [CB: that would hardly be a surprise, given the muddled language about flavours used in the expert community]
  • On a related note, it’s also puzzling why tobacco flavor becomes less common post-ban – even with the rampant circumvention of the ban, I’d expect use to increase since it’s the only remaining available option (except for possibly non-flavored). This might be an effect of the type of people who quit using e-cigarettes after the ban: it seems to be the more casual or experimental users who stopped using e-cigarettes, leaving a greater proportion of heavier users who also smoke more frequently and more often use tobacco-flavored e-cigarettes.
  • Yang Y, Lindblom EN, Ward KD, Salloum RG. medRxiv. 2023 May 21:2023.05.19.23290249. doi: 10.1101/2023.05.19.23290249. Preprint. PMID: 37292701 Free PMC article.

2020, Feb 26 - Article: Research suggests adults, not just teens, like electronic cigarette flavors

  • A variety of resources are available to teens and adults who want to obtain flavors that range from online videos demonstrating how to add flavors or make your own liquids, to social media networks and websites that make it easier for people to obtain unregulated products off the streets or from foreign countries.
  • “Unauthorized flavor additions or buying products off the streets is dangerous for personal health since we don’t know what the chemicals are in those products,” Du said.
  • About 10 percent of respondents indicated that if their preferred flavor was banned, they’d consider going back to smoking.
  • The evidence we’ve collected says that adult, long term e-cigarette users with a preference for sweeter flavors may face health risks trying to obtain or make their preferred flavors

2019, Jun 21 - Study: Changes in Flavor Preference in a Cohort of Long-Term Electronic Cigarette Users

  • Nearly 50% of the participants reported that they would “find a way” to buy their preferred flavor or add flavoring agents themselves if nontobacco flavors were banned.

Unintended consequences of taxes and bans

Eric Garner dies in NYPD chokehold

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