Oregon lawmakers are attempting to ban sales of flavored vaping and tobacco products in the name of reducing youth nicotine use. But the move would outlaw popular smoking-cessation tools, shutter small businesses and send at least some consumers to the illicit market.
To supporters of House Bill 3090, it’s worth it.
“It’s always better to prevent the problem than to solve it.”
“I’m a believer in upstream,” said Senator Elizabeth Steiner (D), a physician and one of the bill’s four chief sponsors, during a first public hearing in March. Sidestepping criticisms that a ban would remove key alternatives to smoking, she argued that the state would be best served by trying to prevent nicotine use in the first place.
“It’s always better to prevent the problem than to solve it,” she said.
Several other states, including New York and California, have already enacted similar bans on sales of flavored tobacco and nicotine products.
Smoking among young people has declined to record lows in recent years. But Oregon’s health authority has simultaneously reported sharp increases in youth vaping, including an apparent 80 percent jump among 11th graders between 2017 and 2019. The state analysis found that more than half of youth nicotine consumers used flavored products, and of those who smoked, roughly half previously vaped. On the other hand, half of high school students who “currently” vaped had previously smoked.
Tobacco harm reduction advocates feel frustrated and abandoned by Steiner’s “upstream” approach when current smoking causes almost half a million deaths annually in the United States. They say adults who use flavored vapes would pay a heavy price for a ban in Oregon.
They also dispute the notion of a “gateway effect” from vapes to cigarettes, and point to research suggesting that many youth who vape would be smoking if vapes weren’t available.
Millions of people worldwide have used vapes, which are far less harmful than cigarettes, to quit smoking.
Jason Weber, for one, smoked for about 14 years before switching completely to vaping. He was working as a night manager at a grocery store at the time, and nearly half of his coworkers smoked cigarettes.
Like many who discover vaping after years of smoking, Weber became something of an evangelist. At work, “I pretty much got everyone to quit smoking,” he told Filter.
Dissatisfied with flavors at nearby shops, Weber began researching and then mixing his own e-liquids. “It was the liquid that really got me into it,” he explained. Like many people, he found something that actually tastes good “makes it easier to make that switch.”
Before long, the hobby became a business. Today he produces e-liquid through the company Vape Crusaders and owns three Oregon vape shops under the Smokeless Solutions brand. All told, his vaping companies employ 23 people.
“For our customers, it leaves them with no safe way to get these products.”
Weber described the situation around HB 3090 as “dire,” both for businesses like his and for people like him who’ve relied on flavors to quit cigarettes.
“It’s gotta be about 98 percent of my business, if flavors are taken away,” he said. “And then for our customers, it leaves them with no safe way to get these products, which usually either sends people back to smoking or to the black market.”
Sponsors of the ban have acknowledged that some small businesses will be hit hard, and some have even confessed that a subset of consumers may seek out illicit products or buy flavored vapes from neighboring Washington or Idaho.
“Some people will choose to get these products on the black market, I don’t disagree with it. Some people—but not many—will choose to drive,” Steiner told colleagues during testimony on the bill in March. But she downplayed concerns raised by some Republican lawmakers that consumers would flock to the illicit market.
“Some of these data show that most people won’t even cross the street to go to a different store,” she said.
As for health impacts of a ban, she acknowledged that some adults switch to flavored products “as a relative harm reduction thing perhaps that’s marginally better,” but added: “However, it’s still not good.”
“I am going to choose the kids over the small businesses.”
Steiner and her cosponsors did not respond to Filter’s requests for comment by publication time. But many supportive Democrats see the flavor ban as a simple matter of protecting children.
“I am going to choose the kids over the small businesses,” Rep. Thuy Tran, a member of the House Committee on Behavioral Health and Health Care, said ahead of the panel’s 6–5 vote in April to advance HB 3090. It next proceeds to the Joint Ways and Means Committee, which Steiner co-chairs.
Weber and others say it’s wrong to frame the policy choice in such stark terms. Rather than prohibit flavors, they want regulators to consider strengthening or better enforcing laws that already prohibit sales of nicotine products to minors.
“You know, I do have a teenage daughter, so I’m on the same page as at least what they say they want,” Weber said, referring to the bill’s sponsors. “We don’t want youth to use these products. Completely understand. But prohibition, and putting people out of work, is not the way to do it. We need to sit down and come up with smart legislation instead of constantly having knee-jerk reactions.”
At Weber’s vape shops, for example, all customers must be 21 or older simply to enter the store, he said. But a state inspection showed that underage sales were occurring at other vape retailers, including gas stations, grocery stores and smoke shops. Weber thinks a better alternative to a flavor ban would be to restrict sales to adult-only shops, like how the state treats cannabis and liquor. Yet even that would substantially restrict adult access.
Steiner and others are convinced that banning flavors will reduce youth nicotine use, arguing that fruity or candy-flavored products are more appealing to kids. But opponents say that no available research has shown that flavor bans prevent uptake of either smoking or vaping.
“Did anybody find a study that showed a flavored tobacco ban reduces consumption for children? Because I couldn’t find one,” Representative Ed Diehl (R), who voted against the ban, told the House committee in April.
Sometimes the conclusions drawn in published research are difficult to parse.
In commentary published by the Journal of the American Medical Association in March, for example, the director of the Rutgers Center for Tobacco Studies, Cristine Delnevo, wrote that “concerns about a gateway effect and a potential increase in youth cigarette use following the introduction of e-cigarettes to the US market are not supported by the data.” Yet the same article says that “in the context of a complex tobacco marketplace, increased diversity in the types of products, brands, and flavors fundamentally provides more opportunities for youths to experiment with tobacco and nicotine products.”
“State lawmakers are often being fed state-specific data that is up to four years old.”
Similar obstacles arise around claims by Democrats who support the flavor ban. In particular, lawmakers have conflated the use of vapes and combustible tobacco when making certain claims, like how many deaths they say the bill will prevent.
Opponents of flavor bans also say lawmakers are drawing from old youth-vaping data that don’t reflect current trends. Greg Conley, director of legislative and external affairs for the American Vapor Manufacturers Association trade group, told Filter that “state lawmakers are often being fed state-specific data that is up to four years old.”
“That was a whole pandemic ago, and before we had tobacco 21 in law,” he said, referring to a 2020 change that raised the federal minimum age for tobacco products from 18 to 21. “We know we’ve seen declines in youth vaping from 2019 to 2022 of between 50 to 60 percent.”
The most recent available data from the National Youth Tobacco Survey, released in December by the US Food and Drug Administration and Centers for Disease Control, found that 9.4 percent of students in middle and high school vaped within the past 30 days. But only 2.6 percent said they vaped daily. Past-30-days use of cigars (1.9 percent) or cigarettes (1.6 percent) was lower still.
The survey found that an overwhelming majority of youth who vaped used flavored e-liquids, though it’s worth noting that in most jurisdictions, flavored products make up the bulk of what’s on store shelves.
As Conley noted, “We live in a world in which tens of millions of adults regularly drink flavored hard seltzer and flavored caffeinated beverages, as well as occasionally enjoying a THC gummy.” Just because some products may appeal to children doesn’t mean manufacturers are attempting to market to youth.
“One of the benefits of flavors is you disconnect the adult from the taste of cigarettes,” Conley said. “That’s what worked for me, knowing if I went back to Marlboros, I was not going to get a watermelon flavor.”
“I don’t see any chance for this to change, sadly. Doesn’t mean I’ll stop fighting.”
Critics of HB 3090 said they don’t expect the outcry from consumers or businesses to win over enough lawmakers to stop the flavor ban becoming law.
“I don’t see any chance for this to change, sadly,” Weber said. “Doesn’t mean I’ll stop fighting.”
Emily Soules is a lobbyist who represents the Oregon Vapor Trade Association and the Oregon Small Business Association, both of which oppose the ban. Most vape shops she works with are small retailers, open only to adults and selling vape products specifically.
“If the vape ban were to go through, there’s no other products my stores sell,” Soules told Filter. “Unfortunately, it’s my job to relay the message that this is the year they might be closing.”
One argument Soules has made to lawmakers is the impact the change would have on the state’s bottom line. While estimates vary, the state Legislative Revenue Office says the ban would cost Oregon roughly $90 million per year.
These financial concerns have already pushed lawmakers to slightly delay the ban. The bill was filed with an emergency clause that would have banned sales later this year, but lawmakers have since removed it, largely over fears they would have to return taxes on products that businesses could no longer legally sell.
“One of my store owners believed that his tax refund would be about $250,000,” Soules said.
In its current form, the bill would prohibit sales of flavored vape products in Oregon as of July 1, 2024.
“They’ve done everything they can to make the public believe that vaping was created by cigarette companies in order to hook a new generation.”
Among those who oppose it, a common complaint is that small vape-specific businesses are often described by lawmakers as representatives of Big Tobacco. In truth, they say, many in the vaping community spent years trying to quit cigarettes and want nothing to do with tobacco brands.
“It’s unfortunate, because I think there’s a lot of compromises and a lot of good policy work we could do if we were invited to the table, but because we’re viewed incorrectly as part of Big Tobacco, a lot of those conversations never happen,” Soules said.
Alex Clark, CEO of the Consumer Advocates for Smoke-free Alternatives Association (CASAA), told Filter that lawmakers “have recycled the same arguments they had when they were going against the cigarette companies.”
“They’ve done everything they can to make the public believe that vaping was created by cigarette companies in order to hook a new generation,” he said. “That’s not how it happened at all. It was people in garages and basements trying to make a product better for themselves.”
Photograph by Lindsay Fox/Ecigarattereviewed via Flickr/Creative Commons 2.0
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