Vermont’s Dilemmas in Bid to Ban Both Flavored Vapes and Menthol Cigarettes

    At a digital meeting of Vermont’s Senate Health and Welfare Committee, Tina Zuk, the government relations director at American Heart Association in the state, seemed to have the kind of brief technical problem typical of the COVID era.

    “We used to have a joke among our government relations people that we could do our job, but not math,” she said to her colleagues in February. “And it’s sort of the same with technology. So it takes me a little bit to get going here.”

    It could serve as a metaphor for what’s currently happening in Vermont and across the country, as towns, cities and states continue to misunderstand the technological breakthrough of vaping and resume their battle against tobacco harm reduction.

    Stalled for a while by the pandemic, the Vermont state senate recently decided to reconsider prohibiting both flavored vaping products and menthol cigarettes. That bill, S24, is currently making its way through committees, having just landed in Economic and Development.

    “This is a health bill,” Cheryl Hooker, a Democratic Vermont state senator, retired schoolteacher and former American Cancer Society employee, told Filter. “We shouldn’t be encouraging anyone to smoke. It’s bad for your health. And it costs the state money. It costs the government money. There are hundreds of millions of dollars spent each year on smoking-related illnesses.”

    Hooker is a sponsor of S24. When asked if there was any difference between the harms of cigarettes and vaping, she responded that “they’re the same.”

    But in fact, authorities from the UK’s Royal College of Physicians to the US National Academies of Sciences, Engineering and Medicine determined years ago that vaping is vastly less harmful.


    Dual-Purpose Bans

    Vermont is beginning to see, though, how difficult it is to pass a single law to prohibit flavored vaping products and menthol cigarettes. Part of the issue—if not the entire problem—is that there’s a pair of concerns that often get lumped into one: warding off the so-called youth vaping epidemic and dealing with the fact that the tobacco industry has disproportionately targeted menthol cigarettes at African Americans.

    “States banning flavored e-cigarettes and leaving all these flavored tobacco products—menthol cigarettes—on the markets is totally backwards,” Eric Lindblom, an ex-FDA tobacco control official who’s now a senior scholar at Georgetown’s O’Neill Institute for National and Global Health Law, told Filter. Although Lindblom is in favor of banning both, “there’s obviously some logic,” he said, “of possibly leaving menthol e-cigarettes available so people will move away from smoking.”

    Menthol cigarette bans have been implemented at state and local levels—in cities like San Francisco and states like Massachusetts. But imposing these bans has generally been a harder task for lawmakers than has been the case with flavored vaping products. Much of the blame for this tends to fall on the industry, which fought to reverse the measure in San Francisco, for example. According to the Campaign for Tobacco-Free Kids—a nonprofit focused on eradicating teen nicotine use and implementing bans of all flavored tobacco and flavored vapor products—only around a third of the localities that have passed flavor restrictions have included menthol cigarettes.

    “They’re not all equal in terms of harm, and that is certainly something that we recognize.”

    In Vermont, it’s still too early to tell.

    “We don’t quite know the way the legislature will go,” Rhonda Williams, the chronic disease prevention chief at the Vermont Department of Health, told Filter. “In terms of comprehensive tobacco control, you need to look at all tobacco products and understand who is using them, to what degree and to what frequency, and what the associated harms [are] with those sorts of tobaccos. They’re not all equal in terms of harm, and that is certainly something that we recognize.”

    Last fall, the city council in Chicago—in an effort to outright ban flavored tobacco products—failed to pass legislation to prohibit menthol cigarettes, as many officials there had hoped, and instead settled for a ban on just flavored vapes. In January, a California flavor ban that included menthols was placed on hold and will be put to the voters in a referendum next year. Other states, such as New York and New Jersey, have managed to ban flavored vaping products, but they’ve also stalled with menthol cigarettes. Connecticut is eyeing a flavor ban, including menthol combustibles, and the outcome remains to be seen.


    The Federal Picture

    But the states might not even have to revisit those plans. A court deadline for the Food and Drug Administration (FDA) to address menthol cigarettes is looming at the end of April.

    On March 22, Sheila Kaplan, the veteran New York Times reporter on the FDA and the tobacco industry, published an article about ongoing efforts to ban menthol cigarettes at a federal level. It’s been a long-running saga: In 2009, the FDA banned flavored combustibles but carved out an exemption for menthols. Scott Gottlieb, the former FDA commissioner whom Kaplan interviewed, tweeted out the piece but appeared careful with his wording, writing that “the Biden Administration should complete what’s been started, and ban all characterizing flavors from combustible tobacco.” (My emphasis.) It was a distinction—vaping vs. smoking—that consumer advocates are not confident the wider public will draw.

    The contentious menthol debate typically centers on race and youth. Nearly 86 percent of African Americans who smoke use menthol cigarettes, according to the FDA, and more than half of all smokers aged 12 to 17 smoke menthols. The tobacco industry, decade after decade, has explicitly marketed menthols toward the Black community, and some leading activists, such as Dr. Phillip Gardiner, a co-chairman of the African American Tobacco Control Leadership Council, have been vocal that a menthol ban would be a step in the right direction. “It’s precisely at this time that we need strong public health measures,” he told The New York Times.

    “Pushing menthol cigarettes into illegality can be seen as a way to further harass and criminalize Black people.”

    Arguments against menthol bans are also firmly established, typically voiced by harm reduction advocates and drug policy reformers who find themselves in the familiar position of explaining why prohibition fails (though not all come down on the same side of this complex issue). 

    “Pushing menthol cigarettes into illegality can be seen as a way to further harass and criminalize [Black people],” David Sweanor, a tobacco industry expert and chair of the advisory board of the Centre for Health Law, Policy, and Ethics at the University of Ottawa, told Filter. “Many politicians are now concerned about such overtly race-centric policies … So attacking new and massively less hazardous products has become the go-to policy option for the abstinence-only groups.”

    Organizations like the National Organization of Black Law Enforcement Executives (NOBLE), for example, also oppose banning menthols, citing “unintended consequences” that could “precipitate a robust and troubling illicit market.”

    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.

    Like the totally different risk profiles of vaping and smoking, these issues are ones that Vermont lawmakers should consider as S24 inches forward.

    “I guess I can’t stop people from doing that,” State Senator Hooker said, when asked about the illicit market her bill would likely generate. “But my hope is that kids won’t be affected.”


    Photo by Vaping360 via Flickr/Creative Commons 2.0 

    • Alex was formerly Filter’s news editor. He previously worked as a reporter and copy editor at VICE, and has been published in the New York Times Magazine, the Columbia Journalism Review, the Los Angeles Times and the New Republic, among other outlets. He was also previously a freelance editorial consultant for the Foundation for a Smoke-Free World; The Influence Foundation, which operates Filter, has received grants from the Foundation for a Smoke-Free World. He is currently based in Los Angeles.

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