On May 10, a Colorado Senate committee voted against a bill that would have banned flavored e-cigarettes as well as most flavored tobacco products. With the legislation unlikely to be revisited in the foreseeable future, it represents a notable stemming of the tide of bans around the United States.
Colorado’s House Bill 1064 has been the subject of intense focus this past week. Besides media coverage and campaigning, the sums thrown at lobbying—Altria and Reynolds American reportedly spent $149,000 and $173,000, respectively, on lobbying against the bill, while the Michael Bloomberg-funded Campaign for Tobacco-Free Kids (CTFK) shelled out around $181,000 to support some 25 lobbyists in seeking to get it passed—illustrated the stakes.
Advocates argued that it would keep Colorado’s smokers at risk, close down small businesses and sink tax revenue.
The fight had something of a warm-up act in December 2021, when a legislative battle about a citywide flavor ban in Denver laid out what could happen on the state level: a highly fraught debate pitting a prohibition-leaning, anti-vaping contingent of many mainstream public health organizations against a pro-tobacco harm reduction camp of tobacco control researchers, drug policy reformers, consumer advocates, small business owners and the tobacco industry. Yet despite the fiery back-and-forth, Denver Mayor Michael Hancock, a Democrat, vetoed the bill after it passed through the City Council, effectively saying he didn’t think the policy would work without being implemented throughout Colorado.
Now, that’s not going to happen anytime soon. The three Republicans on the seven-person appropriations committee, along with two Democrats, voted to reject the state bill in a 5-2 split.
“We only had two possibilities” to defeat the state’s flavor ban, Amanda Wheeler, the president of American Vapor Manufacturers and a vape shop owner in Arizona, told Filter. Advocates either had to “run out the clock,” as the legislative session would soon end and not pick up again until next January, or kill it outright. “We knew the best way to kill it outright in the Senate would be in the appropriations committee, where they deal with the budget.” (The bill had recently passed through the House and went to the Senate, where it squeaked through the finance committee days earlier.)
Wheeler offered three reasons she believed the flavor vape ban ultimately failed: Harm reduction advocates, vape shop owners, and lobbyists had argued privately and in public that such a move would keep Colorado’s smokers at risk (with no viable safer nicotine alternatives available), close down a bevy of small businesses and sink tax revenue.
“I think [the tax] helps us out a bunch. They have more of an incentive to keep us around.”
Wheeler referred to the last point as both a “blessing” and a “curse”: Ironically enough, a statewide tobacco tax—which included a vape tax—will help to fund universal preschool in Colorado. The pre-K legislation, a campaign promise from Democratic Governor Jared Polis signed into law at the end of April 2022, is set to take effect next year. Initial projections showed that the flavor ban could have cost the program $25 million.
“I think [the tax] helps us out a bunch,” Monica Vondruska, the owner of the Colorado-based vape shop Cignot, told Filter. “They have more of an incentive to keep us around.”
Wheeler described the days since their win as a “post-victory hangover,” a kind of emotional relief. But the defeat of this legislation—a rarity, as these kinds of bills typically die for bureaucratic reasons, if they die at all—has also opened up questions about how state- and city-level vape policies might eventually conflict with federal regulations.
There is, after all, an obvious contradiction: Why would consumer activists and vape shop owners fight so hard against a state-level flavor ban when the Food and Drug Administration (FDA) seems to be initiating a de facto one nationwide? To date, the agency has only authorized a handful of e-cigarettes and tobacco flavors through its premarket tobacco product application (PMTA) process—an onerous procedure in which manufacturers have to show their products will be more likely to help adult smokers switch to the safer alternative than introduce a new generation to nicotine.
“The state fights are certainly daunting and tiresome,” Phil Guerin, the owner of Myxed Up Creations, a chain of smoke shops across Colorado, told Filter. “But right now we have this Reefer Madness mentality at the state level, and if retailers can continue the fight at the state level, hopefully some of the [marketing denial orders] the FDA issued will be overturned in court.”
There’s hope, in other words, that the FDA may not ultimately ban all flavors. Or perhaps the agency will have to legally reverse course on some flavored e-liquids used in open systems—devices not popular among teenagers. For some in the vapor industry, though, that optimism might be a step too far.
“There’s a bigger battle” than the PMTA process, Guerin said. “The federal government does not have the resources to enforce on a local level. Are they going to come in and shut down every store selling [flavored vaping products]? No. I don’t think the state’s going to enforce this.”
The failure to push a ban through in Colorado might point to a failure in political strategy, or a sign that the cultural tides could be shifting.
Though flavor bans have failed in the past, they are typically successful, and the arguments used to install them have been commonplace. However, the failure to push one through in Colorado—even with CTFK pouring so many resources into the battle—might point to a failure in political strategy, or a sign that the cultural tides could be shifting. It becomes increasingly difficult to demonize vapor as the FDA authorizes some products as “appropriate for the protection of public health.”
“I think smaller businesses want to make sure that Big Tobacco doesn’t use the FDA procedure to completely take over the vaping space,” Art Way, the founder of Equitable Consulting and the former Colorado state director for the Drug Policy Alliance (DPA), told Filter. “The states are going to have an enforcement problem if the FDA does not allow some flavors.” Way acknowledged that states like Colorado might not openly allow flavored vaping products to be sold in the absence of FDA authorizations, but that it could “through lack of enforcement essentially take place.”
The Influence Foundation, which operates Filter, has received grants from both Altria and Reynolds. It also received a restricted grant from DPA to support a Drug War Journalism Diversity Fellowship. Filter’s Editorial Independence Policy applies.