Testimony before the Hawaii House Committee on Consumer Protection & Commerce Regarding Banning the Sale of Flavored Tobacco and Vapor Products

Chairman Nakashima, Vice-Chairman Sayama and Members of the Committee:

Thank you for your time today to discuss banning flavors tobacco and vapor products in Hawaii. My name is Lindsey Stroud and I’m Director of the Consumer Center at the Taxpayers Protection Alliance (TPA). TPA is a non-profit, non-partisan organization dedicated to educating the public through the research, analysis and dissemination of information on the government’s effects on the economy. TPA’s Consumer Center focuses on providing up-to-date information on adult access to goods including alcohol, tobacco and vapor products, as well as regulatory policies that affect adult access to other consumer products, including harm reduction, technology, innovation, antitrust and privacy.

While addressing youth use of age-restricted products is laudable, lawmakers must refrain from prohibitionist bans on both products that adults responsibly consume as well as products that may help adults quit smoking. Youth use of traditional tobacco products has reached record lows, while youth vaping has halved in recent years. Bans will force adult consumers to seek out illicit products from clandestine sources, which may cause more harm.

Key Points

• Youth vaping has decreased by 53 percent between 2019 and 2022, while youth use of traditional tobacco products is at record lows.
• In 2022, among middle and high school students that had used a tobacco or vape product on at least one occasion in the 30 days prior, 9.4 percent reported using e-cigarettes, 1.9 percent had used cigars, 1.6 percent has used combustible cigarettes and 1.3 percent had used smokeless tobacco products.
• Youth are not using e-cigarettes because of flavors.
• In 2017, among Hawaiian high school students that had ever used e-cigarettes, 26.4 percent cited flavors as a reason for e-cigarette use, compared to 38.9 percent that reported “other.
• Nationally, in 2021, among middle and high school students that were currently using e-cigarettes, 43.4 percent had used them because of feelings of anxiety, stress and/or depression, compared to 13.2 percent who had cited using them because of flavors.
• In three of four states with current flavored tobacco and vape bans, smoking rates among young adults increased, while nationally, they decreased on average by nearly 20 percent.
• The illicit market is thriving on internet marketplaces from New York City to California.
• The introduction of e-cigarettes has not led to increases in cigarette smoking, but rather, correlates with significant declines in smoking rates among young adults.
• Between 2007 and 2018, smoking rates among Hawaii adults aged 18 to 24 years old declined by 39.6 percent. Since 2018, young adult smoking rates have decreased another 47.3 percent, with average annual declines of 16.8 percent.
• Hawaii woefully underfunds programs to prevent youth use of tobacco and/or vapor products and help adults quit smoking, while simultaneously receiving millions of dollars from the pockets of the adults who smoke. In 2021, for every $1 the state received in tobacco monies, it spent only $0.06 on tobacco control efforts.

Youth Tobacco and Vapor Product Use

Despite headlines, youth use of traditional tobacco products is at record lows, while youth e-cigarette use peaked in 2019 and has steadily declined in the years since.

In 2022, according to the National Youth Tobacco Survey (NYTS), among middle and high school students that had reported current tobacco product use (defined as having used the product on at least one occasion in the 30 days prior), 1.9 percent had used cigars, 1.6 percent had used combustible cigarettes and 1.3 percent had used smokeless tobacco products.[1] These are some of the lowest levels recorded. In fact, in the 10 years between 2012 and 2022, current cigar use declined by 75.3 percent, cigarette use by 81.7 percent and smokeless tobacco use by 67.9 percent. These declines have come all the while flavored tobacco and vapor products remain available for sale.

Regarding vaping use (according to the NYTS), vaping seems to have peaked in 2019 when 20 percent of middle and high school students had used an e-cigarette in the 30 days prior to the survey. In 2022, only 9.4 percent of U.S. youth were currently vaping, a 53 percent decrease from 2019’s levels.

Other national survey data has found significant declines in youth use of tobacco and vapor products. In 2022, according to the Monitoring the Future Survey (MTFS), among middle and high school students, 2.3 percent reported currently using smokeless tobacco, 2.2 percent reported current combustible cigarette use, and 1.4 percent reported using flavored little cigars.[2] Again, these are some of the lowest levels recorded. In 2012, more than one in ten U.S. youth (11 percent) reported current cigarette use. In ten years, smoking rates among U.S. youth declined by 78.7 percent. During the same period smokeless tobacco use among youth decreased by 59.6 percent. Between 2014 and 2022, the percent of youth reporting current use of flavored cigars declined by 81.2 percent.

Similar to the NYTS, the MTFS also found that youth vaping peaked in 2019, when 22.7 percent of U.S. youth reported “any vaping” – i.e., using a vapor product to vape either nicotine or other substances.  Between 2019 and 2022, the percent of youths reporting any vaping decreased by 23.9 percent.

Youth Are Not Using E-Cigarettes Because of Flavors

National and state surveys consistently find that youth are not overwhelmingly using e-cigarettes because of flavors.

In 2017, among Hawaiian high school students that had ever used e-cigarettes, 26.4 percent cited flavors as a reason for e-cigarette use, compared to 38.9 percent that reported “other.”^[3]

In 2019, among all Connecticut high school students, 5.2 percent reported using e-cigarettes because of “flavors,” 18.2 percent cited “other,” and 12.9 percent reported using e-cigarettes because of friends and/or family.^[4]

Among highschoolers in Maryland that used e-cigarettes, when asked about the “main reason” for using e-cigarettes only 3.2 percent responded “flavors.” ^[5] Conversely, 13 percent reported because “friend/family used them,” 11.7 percent reported “other,” and 3.8 percent reported using e-cigarettes because they were less harmful than other tobacco products.

In 2019, among all Montana high school students, only 7 percent reported using vapor products because of flavors, compared to 13.5 percent that reported using e-cigarettes because of “friend or family member used them.”^[6] Further, 25.9 percent of Montana high school students reported using vapor products for “some other reason.”

In 2019, among all students, only 4.5 percent of Rhode Island high school students claimed to have used e-cigarettes because they were available in flavors, while 12.5 cited the influence of a friend and/or family member who used them and 15.9 percent reported using e-cigarettes “for some other reason.”^[7]

In 2017, among current e-cigarette users, only 17 percent of Vermont high school students reported flavors as a reason to use e-cigarettes. Comparatively, 35 percent cited friends and/or family members and 33 percent cited “other.”^[8]

In 2019, among high school students that were current e-cigarette users, only 10 percent of Vermont youth that used e-cigarettes cited flavors as a primary reason for using e-cigarettes, while 17 percent of Vermont high school students reported using e-cigarettes because their family and/or friends used them.^[9]

In 2019, among all Virginia high school students, only 3.9 percent reported using e-cigarettes because of flavors, 12.1 used for some other reason, and 9.6 used them because of friends and/or family members.^[10]

This state data is representative of even more recent national survey data. According to the 2021 NYTS, among middle and high school students that reported current e-cigarette use, 43.4 percent cited using them because they were “feeling anxious, stressed, or depressed,” compared to only 13.2 percent who cited using them because they were available in flavors.[11]

Among students that reported having ever tried an e-cigarette, 57.8 percent cited using them because a friend uses them, compared to 13.5 percent who cited the availability of flavors.

If lawmakers want to address youth vaping, they must understand why youths are vaping.

Adult Tobacco and Vape Use

In 2021, 10.1 percent of adults in Hawaii were currently using cigarettes.^[12] Smoking rates were highest among 45- to 64-year-old adults, with 12.1 percent reporting current use.

Among all adults earning $25,000 annually or less in 2021, more than one fifth (21.2 percent) reported currently smoking, compared to only 7.3 percent of adults who earned $50,000 or more per year.

The CDC provides data on adult e-cigarette use for only 2016, 2017, and 2021.

In 2021, among all Hawaii adults, 7.3 percent were currently using e-cigarettes. This is a 55.3 percent increase from 2017 when 4.7 percent of Hawaiian adults were current e-cigarette users.

In 2021, among all Hawaii adults, 24.5 percent of 18- to 24-year-olds, 11.2 percent of 25–44-year-olds, 2.4 percent of 55–64-year-olds, and 0.7 percent of adults aged 65 years or older were currently using e-cigarettes.

Among adults earning $15,000 or less, 7.9 percent reported current e-cigarette use, compared to 4.8 percent who reported earning $50,000 or more.

In Hawaii, 10.7 percent of Multiracial, non-Hispanic adults, 10.5 percent of Native Hawaiian and/or Pacific Islander adults, 10.2 percent of Hispanic adults, 7.4 percent of Black adults, 6.1 percent of White adults, and 5.1 percent of Asian adults were currently using e-cigarettes in 2021.

Effects of Current Flavor Bans

As of January 2023, five states have active statewide bans on the sale of flavored vapor products, including two states which have also banned the sale of flavored traditional tobacco products. Opponents claim that prohibition will work to reduce smoking and thus liberate resources for states due to reduced health care costs attributed to smoking. Yet, evidence from existing states find flavor bans correlate with increases in young adult smoking, all the while states lose revenue and neighboring ones profit.[13]

In 2021, 14.4 percent of American adults were currently smoking. This is a 7.1 percent decrease from 2020’s 15.5 percent. Among young adults (aged 18 to 24 years old), a miniscule 7.4 percent were current smokers.

Among all states (minus Florida), smoking rates among adults aged 18 to 24 years old decreased by 19.7 percent on average between 2020 and 2021. Only nine states saw young adult smoking rates increase during the same period. Alarmingly, three of those states are home to flavored e-cigarette bans and lawmakers should avoid pushing prohibitionist flavor policies forward.

In Massachusetts, 7.4 percent of 18- to 24-year-olds were current smokers in 2021. This is an 8.8 percent increase from 2020’s 6.8 percent. In New York, young adult smoking rates increased by 12.7 percent from 5.5 percent in 2020 to 6.2 percent in 2021. In Rhode Island, between 2020 and 2021, smoking rates among young adults aged 18 to 24 years old increased by 5.7 percent.

Of the then-four states with active flavored e-cigarette bans, only New Jersey saw a reduction (6.8 percent) in young adult smoking rates.  This is significantly lower than the average rate of reduction among all U.S. young adults.

Flavored tobacco bans have also failed to meaningfully reduce smoking rates while significantly reducing cigarette tax revenue and transferring it to other states.

The Massachusetts flavored tobacco and vape ban went into effect in 2020. Between 2020 and 2021 state excise tax revenue decreased by 22.3 percent, representing a loss of over $106 million. Meanwhile, smoking rates among all adults only decreased by 4.5 percent (11.1 percent of adults in 2020 to 10.6 percent in 2021).

Neighboring New Hampshire saw an 11.5 percent reduction in adult smoking rates between 2020 and 2021, yet cigarette excise tax revenues increased by 14.4 percent during the same period.

Given the poor effects of flavored tobacco bans on young adult smoking and the failed experiment in Massachusetts, lawmakers should refrain from restricting the sales of flavored tobacco and vapor products. 

In Thriving Illicit Market, Unregulated Products Harm Users

Flavored tobacco and vape product bans only punish responsible retailers while incentivizing clandestine actors to engage in new illicit marketplaces. Unregulated tobacco and vapor products pose a risk to all consumers, both youth and adults alike. Nonetheless, consumers have indicated they would seek out illicit products should their product of choice be banned, and there are already rogue sellers using online marketplaces to sell these unregulated products.

One study examining a possible menthol ban found that at least 25 percent would “find a way to buy a menthol brand.”[14] An experiment which examined current e-cigarette users under a hypothetical flavor ban found that banning “vaping products from the marketplace may shift preference towards purchasing vaping products in the illegal marketplace.”[15] An international survey of vapers from Canada, the United Kingdom and the United States found that over one-fourth (28.3 percent) “would find a way to get their banned flavor(s).”[16]

There is already a booming marketplace online. The examples are relatively easy to find. A Craigslist ad in New York City offers for sale a variety of flavored e-liquid products, from peach to cotton candy.[17] The seller informs the potential customer to “[i]nteract with [them] the same way [one] would a sales person.” Alarmingly, this seller is not interested in providing potential customers with information regarding the products that they may be consuming, noting that any questions about their “cost, date purchased, where purchased, why selling is no one’s concern.” In California, which recently enacted a ban on flavored tobacco and vapor products, “menthol man” is offering to deliver menthol cigarettes for $15 a pack.[18]

There is also an even larger international market of counterfeit vapor products, with officials in numerous countries attempting to stem their flow.

In January 2021, the FDA worked with other federal agencies and seized 42 shipments of counterfeit disposable vapor products from China.[19] In March 2021, Customs and Border Protection officers in Chicago seized $1.5 million in counterfeit vapes.[20]

In 2022, officials in Australia, China, Singapore and the United Kingdom have all reported massive seizures of counterfeit vapor products.[21] [22] [23] [24] The illicit products are so prevalent that a vapor product company has been actively working with government officials in China and has successfully shut down more than 20 factories manufacturing counterfeit vapes.[25]

Tobacco Monies

Each year, states receive millions of dollars borne out of the lungs of persons who smoke. This revenue includes excise cigarette taxes and settlement payments. Yet, each year, states spend miniscule amounts of tobacco-related monies on programs to help adults quit smoking and prevent youth use.

In 2021, the Aloha State collected nearly $98.1 million in state excise tax revenue from combustible cigarettes.[26] This was a 4.2 percent decline from 2020’s $102.4 million. Between 2001 and 2021, Hawaii collected more than $2.1 billion in cigarette taxes.

Since 2000, Hawaii has collected annual payments from tobacco manufacturers based on the percentage of cigarettes and tobacco products sold in the state in that year. Hawaii collected $37.5 million in settlement payments in 2021, a 6.2 percent increase from 2020’s $35.3 million.[27] Since 2000, the Aloha State collected nearly $997 million in tobacco settlement payments.

While Hawaii collected an estimated $135.6 million in tobacco-related monies in 2021, the state allocated only $7.9 million in state funding towards tobacco control programs, including cessation, education, and youth prevention efforts, which was a 23.4 percent increase in funding from 2020 levels.[28] This amounts to 8.1 percent of taxes and 21.1 percent of settlement payments. In 2021, for every $1 the state received in tobacco monies, it spent only $0.06 on tobacco control efforts.

Conclusion

Lawmakers must refrain from prohibitionist policies that will only drive adult consumers to an underground market, exposing users to possibly harmful, unregulated products. Given the significant reductions in youth use of e-cigarettes, as well as the record lows in use of traditional tobacco products, bans on the sales of flavored tobacco and vapor products are not necessary. Rather, policymakers should use more of the already-existing monies derived from cigarettes to prevent youth use and help adults quit.

[1] Eunice Park-Lee, et al., “Tobacco Product Use Among Middle and High School Students — United States, 2022,” Morbidity & Mortality Weekly Report, Centers for Disease Control and Prevention, November 11, 2022, https://www.cdc.gov/mmwr/volumes/71/wr/mm7145a1.htm?s_cid=mm7145a1_w.

[2] University of Michigan, “1975-2022 Data for In-School Surveys of 8th, 10th, and 12th Grade Students,” Monitoring the Future, 2022, https://monitoringthefuture.org/results/data-products/tables-and-figures/.

[3] Lance Ching, Ph.D., et al., “Data Highlights from the 2017 Hawai’i Youth Tobacco Survey,” Hawai’i State Department of Health, June 29, 2018, http://www.hawaiihealthmatters.org/content/sites/hawaii/YTS_2017_Report.pdf.

[4] Connecticut Department of Public Health, “Connecticut High School Survey Codebook,” 2019 Youth Risk Behavior Survey Results, 2019, https://portal.ct.gov/-/media/Departments-and-Agencies/DPH/CSHS/2019CT_Codebook.pdf.

[5] Maryland Department of Public Health, “Maryland High School Survey Detail Tables – Weighted Data,” 2018 Youth Risk Behavior Survey, 2018, https://phpa.health.maryland.gov/ccdpc/Reports/Documents/2018%20YRBS%20YTS%20Reports/Maryland/2018MDH%20Detail%20Tables.pdf.

[6] Montana Office of Public Instruction, “2019 Montana Youth Risk Behavior Survey High School Results,” 2019, http://opi.mt.gov/Portals/182/Page%20Files/YRBS/2019YRBS/2019_MT_YRBS_FullReport.pdf?ver=2019-08-23-083248-820.

[7] State of Rhode Island Department of Health, “Rhode Island High School Survey Detail Tables – Weighted Data,” 2019 Youth Risk Behavior Survey Results, 2019, https://health.ri.gov/materialbyothers/yrbs/2019HighSchoolDetailTables.pdf. 

[8] Vermont Department of Health, “2017 Vermont Youth Risk Behavior Survey Report Winooski SD Report,” 2018, https://www.healthvermont.gov/sites/default/files/documents/pdf/WINOOSKI_SD_%28SU017%29.pdf.

[9] Vermont Department of Health, “2019 Vermont Youth Risk Behavior Survey Statewide Results,” March, 2020, https://www.healthvermont.gov/sites/default/files/documents/pdf/CHS_YRBS_statewide_report.pdf.

[10] Virginia Department of Health, “Virginia High School Survey Detail Tables – Weighted Data,” 2019 Youth Risk Behavior Survey Results, 2019, https://www.vdh.virginia.gov/content/uploads/sites/69/2020/06/2019VAH-Detail-Tables.pdf.

[11] Andrea S. Gentzke et al., “Tobacco Product Use and Associated Factors Among Middle and High School Students — National Youth Tobacco Survey, United States, 2021,” Morbidity & Mortality Weekly Report, Centers for Disease Control and Prevention, March 11, 2022, https://www.cdc.gov/mmwr/volumes/71/ss/pdfs/ss7105a1-H.pdf.

[12] Centers for Disease Control and Prevention, “Behavioral Risk Factor Surveillance System,” 2022, https://www.cdc.gov/brfss/brfssprevalence/. Accessed December 2022.

[13] Lindsey Stroud, “Statewide Flavored E-Cigarette Bans Have Led to Increases in Young Adult Smoking,” Townhall, October 21, 2022, https://townhall.com/columnists/lindseystroud/2022/10/20/statewide-flavored-e-cigarette-bans-have-led-to-increases-in-young-adult-smoking-n2614807.

[14] Richard J. O’Connor et al., “What would menthol smokers do if menthol in cigarettes were banned? Behavioral intentions and simulated demand,” Addiction, April 4, 2012, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3370153/.

[15] Roberta Freitas-Lemos et al., “The Illegal Experimental Tobacco Marketplace I: Effects of Vaping Product Bans,” Nicotine & Tobacco Research, October 23, 2021, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8403238/.

[16] Shannon Gravely et al., “Responses to potential nicotine vaping product flavor restrictions among regular vapers using non-tobacco flavors: Findings from the 2020 ITC Smoking and Vaping Survey in Canada, England and the United States,” Addictive Behaviors, October 14, 2021, https://pubmed.ncbi.nlm.nih.gov/34695685/.

[17] Craigslist, “Atmos No Nicotine E-liquid 12ml – $5 (Chelsea),” https://web.archive.org/web/20230125180105/https:/newyork.craigslist.org/mnh/for/d/new-york-atmos-no-nicotine-liquid-12ml/7577982709.html. Accessed January 2023.

[18] Craigslist, “menthol man delivery service (Sacremento),” https://web.archive.org/web/20230125181307/https:/sacramento.craigslist.org/bar/d/sacramento-menthol-man-delivery-service/7577129096.html. Accessed January 2023.

[19] U.S. Food and Drug Administration, “CBP, FDA Seize Counterfeit, Unauthorized E-Cigarettes,” January 13, 2021, https://www.fda.gov/news-events/press-announcements/cbp-fda-seize-counterfeit-unauthorized-e-cigarettes.

[20] U.S. Customs and Border Protection, “CBP Officers in Chicago Capture $1.5 Million in Counterfeit Vaping Pens,” March 11, 2021, https://www.cbp.gov/newsroom/local-media-release/cbp-officers-chicago-capture-15-million-counterfeit-vaping-pens.

[21] Mary Ward, “More than $2 million worth of vapes seized in state health crackdown,” The Sydney Morning Herald, February 14, 2022, https://www.smh.com.au/national/nsw/more-than-2-million-worth-of-vapes-seized-in-state-health-crackdown-20220128-p59s0m.html.

[22] Diana Caruana, “Hong Kong Customs Seize Thousands of Vape Products Worth a Total of HK$10 Million,” Vaping Post, June 6, 2022, https://www.vapingpost.com/2022/06/06/hong-kong-customs-seize-thousands-of-vape-products-worth-a-total-of-hk10-million/.

[23] Vapor Voice, “Singapore Seizes Nearly $1 Million in Illegal Vapes,” June 2, 2022, https://vaporvoice.net/2022/06/02/singapore-seizes-nearly-1-million-in-illegal-vapes/?utm_source=rss&utm_medium=rss&utm_campaign=singapore-seizes-nearly-1-million-in-illegal-vapes.

[24] Charlotte Lillywhite, “Massive £100k shipment of dodgy vapes seized near Heathrow Airport,” MyLondon, August 9, 2022, https://www.mylondon.news/news/west-london-news/massive-100k-shipment-dodgy-vapes-24708471.

[25] Kiran Paul, “Elf Bar helps close 20 counterfeit factories in China, seizing million fake vapes,” Asian Trader, July 15, 2022, https://www.asiantrader.biz/elf-bar-helps-close-down-20-counterfeit-factories-in-china-seizing-over-a-million-fakes/.

[26] Orzechowski and Walker, “The Tax Burden on Tobacco Historical Compilation Volume 56, 2021. Print.

[27] Campaign for Tobacco Free Kids, “Actual Annual Tobacco Settlement Payments Received by the States, 1998-2022,” December 20, 2022, https://www.tobaccofreekids.org/assets/factsheets/0365.pdf.

[28] Campaign for Tobacco-Free Kids, “Appendix A: History of Spending for State Tobacco Prevention Programs,” 2022, https://www.tobaccofreekids.org/assets/content/what_we_do/state_local_issues/settlement/FY2023/Appendix-A.pdf.