New York State Bans Sale of Flavored E-Cigarettes

New York State became the first state in the nation last week to implement a ban on the sale of flavored electronic cigarettes and nicotine e-liquids, following a vote on emergency regulations by the Public Health and Health Planning Council.

The ban is the latest in a series of actions to combat the increase in young people using vape products, largely as a result of e-cigarette companies marketing flavors that are intended to get children addicted to nicotine.

“It is undeniable that vaping companies are deliberately using flavors like bubblegum, Captain Crunch and cotton candy to get young people hooked on e-cigarettes – it’s a public health crisis and it ends today,” Governor Andrew Cuomo said September 17. “New York is not waiting for the federal government to act, and by banning flavored e-cigarettes we are safeguarding the public health and helping prevent countless young people from forming costly, unhealthy and potentially deadly life-long habits.”

On September 15, Cuomo directed the Department of Health to convene an emergency meeting of PHHC to consider this ban. Cuomo also directed State Police and DOH to immediately partner to ramp up enforcement efforts against retailers who sell to underage youth, with the possibility of criminal penalties, in addition to announcing that he will advance legislation to ban deceptive marketing of e-cigarettes to teens and children. 

As part of the Family Smoking and Tobacco Prevention Act of 2009, the U.S. Congress banned the sale of cigarettes with flavors other than menthol and tobacco.

The alarmingly high numbers of young people in New York State who are using vape products is nothing short of a public health crisis,” said New York State Department of Health Commissioner Dr. Howard Zucker. “These regulations are a part of many critical steps we are taking to combat this disturbing trend.”

Flavors are considered largely responsible for the dramatic increase in use of e-cigarettes by youth and are a principal reason that youth initiate and maintain e-cigarette use. According to Department of Health data, nearly 40 percent of 12th grade students and 27 percent of high school students in New York State are now using e-cigarettes, and this increase is largely driven by flavored e-liquids.

High school use in 2018 (27.4%) is 160 percent higher than it was in 2014 (10.5%). While New York’s high school student smoking rate dropped from 27.1% in 2000 to a record low of 4.3% in 2016, aggressive marketing strategies promoting flavored e-cigarettes is primed to turn that trend.

In a 2017 survey of 15 to 17-year-old adolescents in New York State currently using electronic vapor products, 19% of the adolescents said flavors were the reason that they first tried an e-cigarette and 27% said flavors were the reason for maintaining use. Studies also show nearly 78% of high school students and 75% of middle school students report being exposed to pro-tobacco marketing in 2016. Legislation will be advanced next session to prevent these deceptive and misleading advertisements to target youth.

The American Lung Associated opposed Cuomo’s emergency action, stating it did not apply to menthol flavored e-cigarettes, which with mint flavored e-cigarettes are favored by a majority of high school students. 

“The Governor had the opportunity to take decisive action, but instead left menthol e-cigarettes on the marketplace,” said Harold Wimmer, President and CEO of the American Lung Association. “While today’s announcement was well-intentioned, it will drive our youth to use menthol flavored products in even greater numbers. We will continue to work towards the permanent removal of all flavored tobacco including e-cigarettes from the marketplace.  Flavors have been shown to initiate kids to tobacco use and a lifetime of addiction and tobacco-related death and disease. We call on the New York State Legislature to pass legislation to prohibit the sale of all flavored tobacco products including e-cigarettes, cigars, and menthol cigarettes.”

The Department of Health will provide retailers with an approximate two-week grace period before conducting visits to enforce the flavoring ban beginning on October 7.  Local health departments and the Department’s District Offices, with State oversight, will handle enforcement. Retailers who violate the ban will face fines of up to $2,000 per violation, which is defined as each unit of flavored e-liquid or product containing e-liquid that is possessed, manufactured, sold or offered for sale.

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