David Robinson

Gannett New York

The vaping crisis has ignited a politically and racially charged push to ban all flavors in electronic cigarettes and tobacco products in New York.

Some lawmakers and civil rights advocates described recent spikes in youth vaping as the tipping point in a generational battle over flavors in addictive nicotine products.

The anti-tobacco saga spanned from menthol-cigarette marketing that targeted African Americans beginning in the 1960s to millions of teenagers today using e-cigarettes that mimic tastes of fruits, candies and desserts.

“This epidemic has been fueled by the tobacco industry pushing flavor products like cotton candy, gummy bears and bubble gums to our kids,” Hazel Dukes, president of the NAACP New York State Conference said last week, addressing flavor ban legislation.

“But the truth of the matter is this is nothing new; the device may have evolved but the deceptions have not,” Dukes said, adding state lawmakers “must immediately end this immoral, discriminatory practice of targeting kids” by banning all flavored nicotine-delivery products.

The concerns come as New York battles in the courts to ban flavored e-cigarettes, lawmakers want to enact new laws and as deaths associated with vaping are increasing.

On Friday, New York had its third and fourth vaping-related deaths, Gov. Andrew Cuomo said.

Yet vape shop owners and pro-vaping groups asserted banning flavored e-cigarettes would harm adults who try to quit smoking tobacco by switching to vaping, which involves heating liquids to create an aerosol to inhale.

Instead, some vaping supporters praised federal regulators for banning select flavored vapes this month while allowing vape shops to sell tank-based systems.

The Food and Drug Administration said it targeted products widely used by children while allowing vaping as a "potential off-ramp" for adult smokers.

“Our politicians in Albany are ignoring science and public health in favor of pushing New Yorkers back to smoking,” said Cheryl Richter, executive director of New York State Vapor Association, a vape shop group.

State Sen. Brad Hoylman, D-Manhattan, noted Juul Labs, the embattled vaping company with investments from Marlboro-cigarette maker Altria Group, previously vowed to stop selling the mint- and fruit-flavor vape pods now banned by the Food and Drug Administration.

“It turns out that once again Washington is sucking up to big tobacco and Juul, doing their bidding by allowing them to continue to target our children, communities of color, LGBTQ people, just like big tobacco has done for decades with menthol cigarettes,” he said.

Amid vaping's rise, lawmakers in several states, including New York and New Jersey, have failed to ban menthol cigarettes under intense industry lobbying.

New Jersey, for instance, passed legislation last week to ban flavors in e-cigarettes only after dropping efforts to include a measure to outlaw menthol cigarettes. Lawmakers in part pulled it due to concerns about reducing tax revenue from cigarettes by up to $231 million.

In New York, there are several bills that address banning flavors in e-cigarettes and tobacco products separately, suggesting the potential for a piecemeal prohibition similar to New Jersey.

To understand the stakes, consider New York’s cigarette tax collections and related fees have totaled between $1 billion and $1.5 billion in recent years, state records show. And Altria Group has spent millions of dollars lobbying state and local lawmakers to influence attempted nicotine product bans.

Assemblywoman Rodneyse Bichotte, D-Brooklyn, championed the tobacco flavor ban that includes menthol cigarettes in part by telling a story of losing her father to smoking-related lung and throat cancer.

The legislation “will end the decades of predatory and racial targeting of minority communities by tobacco companies that have historically used menthol cigarettes to addict new generations to their products,” she said.

Meanwhile, the e-cigarette flavor ban legislation would include menthol and all other non-tobacco flavors.

Pro-vaping groups, however, contend vape flavors help smokers break the psychological and physical addictions to the tastes and aromas of cigarettes. And hundreds of vape shops would have to close in New York if flavors are banned, they said.

Further, New York last year raised the age to buy tobacco and vaping products to 21 from 18 and imposed a 20% tax on vapor products, which vaping supporters asserted will curtail youth use.

Tony Abboud, executive director of Vapor Technology Association, said in a statement “any continued discussion about banning flavors is based solely on irrational fears and not real solutions.”

Assemblywoman Linda Rosenthal, D-Manhattan, expanded on the reasons for a comprehensive flavor ban, adding she was a menthol cigarette smoker because it offered a less harsh taste than non-flavored tobacco.

She said the prohibition needs to include every nicotine flavor product “meant to line the pockets of companies who don’t’ care about the effects of their insidious campaigns on the health of youth.”

“They just care to make sure that they get rich,” Rosenthal added.

Altria Group in October said its investment in Juul was rapidly deteriorating in value in part due to anti-vaping laws and regulations.

Altria recorded a third-quarter write-down of $4.5 billion on its stake in Silicon Valley's Juul. That means Altria's $12.8 billion investment in Juul had lost more than a third of its value.

Altria didn’t immediately respond to a request to address comments by Rosenthal and Hoylman, as well as legislation in New York.

Juul officials have said the company is "focused on resetting the vapor category in the U.S. and earning the trust of society by working cooperatively with attorneys general, regulators, public health officials and other stakeholders to combat underage use and convert adult smokers from combustible cigarettes."

Rosenthal noted New York’s Assembly first passed a bill seeking to ban e-cigarettes nearly a decade ago, pending further review of the devices by federal regulators.

At the time, the measure stalled in the Senate amid limited knowledge about vaping and industry lobbying, she said.

“The e-cigarette industry has been trying for at least 10 years to creep its way into our society and hook the next generation of nicotine users and they have been very, very successful,” she said.

In fact, public health officials have reported roughly one of four high school students in New York and millions of young people across the country are now using e-cigarettes, prompting alerts about addiction and health risks.

New York Attorney General Letitia James is also pursuing a lawsuit against Juul, claiming the San Francisco-based company took a page from big tobacco’s playbook to illegally market flavored e-cigarettes to teenagers.

In addition to striking increases in teenage vaping, the urgency driving nicotine flavor bans stemmed from an outbreak of vaping-related illnesses and deaths.

The national epidemic has hospitalized 2,561 and led to 55 deaths. That includes 230 illnesses and four deaths in New York.

While lawmakers warned the vaping illnesses underscored largely unknown e-cigarette health risks, pro-vaping groups noted the lung injuries have been linked to marijuana, revealing a robust and unsafe illicit market for vapes.

“If the New York Legislature decides to wrongly focus on a flavor ban, then it should prepare for a black market where hundreds of thousands of New Yorkers seek out their flavored vapor products from unregulated sources, as opposed to from the well-regulated, professional retailers already licensed by the state to sell tobacco products,” Abboud said.

The vaping trade group recently won a court battle to block New York Governor Andrew Cuomo’s attempt last year at an emergency ban on flavored e-cigarettes. A judge ruled it was a decision constitutionally reserved to the state Legislature.

Instead of a flavor ban, the trade group’s plan to restrict youth access to vapes includes new laws and regulations imposing harsher marketing restrictions, requiring third-party age verification technology at retail and heightened penalties for retailers violating laws.