Testimony before the Bloomington City Council Regarding Banning the Sale of Flavored Tobacco Vapor Products

Taxpayers Protection Alliance

April 26, 2021

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Testimony before the Bloomington City Council
Regarding Banning the Sale of Flavored Tobacco and Vapor Products
Lindsey Stroud, Policy Analyst
Taxpayers Protection Alliance
April 26, 2021

Mayor Busse and Bloomington City Council Members:

Thank you for your time today to discuss the issue of tobacco and vapor product use. My name is Lindsey Stroud and I am a Policy Analyst with 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.

As lawmakers attempt to address youth use of age- restricted products, including electronic cigarettes and vapor products, some policymakers are seeking to ban sales of flavored tobacco and vapor products. Although addressing youth use is laudable, policymakers should refrain from policies that would restrict adult access to tobacco harm reduction products, as well as implementing policies that further subvert adult choices, such as is the case with the proposal to ban flavors in tobacco and vapor products.

Cigarette and E-Cigarette Use Among Bloomington High School Students

The most recent data on Bloomington youth tobacco and vapor product use comes from the 2019 Minnesota Student Survey on youth tobacco and vapor product use in Hennepin County.[i]

In 2019, 83 percent of Hennepin County high school students reported not using a vapor product in the 30 days prior to the survey. Further, nine percent reported using an e-cigarette on one to nine days in the 30 days prior, three percent reported using a vapor product between 10 to 19 days, two percent reported using an e-cigarette between 20 and 29 days, and only three percent of high school students reported daily vapor use.

It is worthy to note that combustible cigarette use among Hennepin County high school students is at all-time lows. In 2019, 98 percent reported not using cigarettes in the 30 days prior to the survey, two percent reported smoking on one to two days, and one percent reported using cigarette on three to nine days prior to be surveyed.

Conversely, in 2004, 82 percent of high school students reported not using cigarettes, 10 percent reported using cigarettes between three to 29 days, and five percent reported daily cigarette use.

Tobacco and Vapor Product Use Among Minnesota Youth

The most recent data on youth e-cigarette use in Minnesota comes from the 2019 Minnesota Student Survey (MSS).[ii] In 2019, according to the MSS, 89 percent of 8th graders, 84 percent of 9th graders and 74 percent of 11th graders reported not using an e-cigarette or vapor product in the 30 days prior to the survey. Further, only 7 percent of 11th graders, 2 percent of 9th graders, and 1 percent of 8th graders reported daily e-cigarette use.

It is worthy to note that Minnesota combustible cigarette use is at all-time lows. IN 2019, according to the MSS, 98 percent, 97 percent, and 95 percent of 8th, 9th, and 11th graders reported not smoking a cigarette in the 30 days prior to the survey. Further, only one percent of 11th graders and 0 percent of 8th and 9th graders, reported daily cigarette use. This is a significant decline from 1992, when 31.3 percent of 12th graders, 19.3 percent of 9th graders and 5 percent of 8th graders reported using combustible cigarettes in the 30 days before the survey.

Tobacco Economics 101: Minnesota

In 2019, 14.6 percent of adults in Minnesota smoked tobacco cigarettes, amounting to 633,125 smokers in 2019.[iii] When figuring a pack-per-day, more than 4.6 billion cigarettes were smoked in 2019 by Minnesota, or about 12.7 million per day.[iv]

In 2019, Minnesota imposed a $3.04 state excise tax on a pack of cigarettes.[v] In 2019, the Gopher State collected $702.5 million in cigarette excise taxes, when figuring for a pack-a-day habit. This amounts to $1,109.60 per smoker per year.

Minnesota spent $17.3 million in state funding on tobacco control programs, including education, cessation, and prevention. This amounts to $27.32 per-smoker, and $13.28 per resident under age 18.

Vapor Economics 101: Minnesota

Electronic cigarettes and vapor products are not only a harm reduction tool for hundreds of thousands of smokers in the Gopher State, they’re also an economic boon.

In 2018, according to the Vapor Technology Association, the industry created 1,152 direct vaping-related jobs, including manufacturing, retail, and wholesale jobs in Minnesota, which generated $44 million in wages alone.[vi] Moreover, the industry has created hundreds of secondary jobs in the Gopher State, bringing the total economic impact in 2018 to $336,366,200. In the same year, Minnesota received more than $20 million in state taxes attributable to the vaping industry. These figures do not include sales in convenience stores, which sell vapor products including disposables and prefilled cartridges. In 2016, average national sales of these products eclipsed $2.6 million.[vii] (See Supplemental Graph 1)

Switching from combustible cigarettes to electronic cigarettes and vapor products will also reduce smoking-related health issues and save persons and states money. WalletHub estimated the “true cost of smoking” including “…cost of a cigarette pack per day, healthcare expenditures, income losses and other costs.”[viii] WalletHub estimated the true cost for a smoker in Minnesota to be $59,336 per-smoker per-year. 

In 1995, 20.5 percent of Minnesota adults smoked combustible cigarettes, amounting to approximately 699,921 adults.[ix] Among all adults, 17.4 percent (594,079 adults) reported smoking every day in 1995. In 2019, 14.6 percent of adults in the Gopher State were current smokers, amounting to 633,125 smokers. Further, 10.5 percent of Minnesota adults (455,330 adults) were daily smokers in 2019.

Among Minnesota adults, current smoking decreased by 28.8 percent between 1995 and 2019. Moreover, there are there are an estimated 255,852 fewer smokers in 2019, compared to 1995, and 299,217 fewer daily smokers. Using the WalletHub figures, this reduction represents nearly $15.2 billion in yearly savings.

Tobacco Compliance Checks

The U.S. Food and Drug Administration (FDA) routinely conducts inspections on tobacco and vapor product retailers, in which the agency uses a minor in an attempt to purchase tobacco and/or vapor products. Usually, within two months from the inspection date, the agency will issue decision letters to the inspected retailers.

Between August 28, 2013 and January 21, 2020, the FDA issued 444 tobacco compliance decision letters to tobacco and vapor product retailers in Bloomington, MN.[x] Of those, only 15 retailers were issued warning letters, meaning 3.4 percent of inspections resulted in violations. Of those violations, seven involved the sales of cigarettes, and seven involved the sales of electronic cigarettes and vapor products. Bloomington City Council should note that flavored prefilled pods were banned nationally by executive order in January, 2020.[xi]

Vapor Product Emergence Correlates with Lower Young Adult Smoking

Electronic cigarettes and vapor products were first introduced to the U.S. in 2007 “and between 2009 and 2012, retail sales of e-cigarettes expanded to all major markets in the United States.”[xii] Examining data from the Centers for Disease Control and Prevention’s Behavioral Risk Factor Surveillance Survey finds that e-cigarettes’ market emergence has been more effective than MTS payments in reducing smoking rates among young adults in Minnesota.

In 1998, among current adult smokers in Minnesota, 22 percent were 18 to 24 years old. Interestingly, in 2008, this had increased by 7.7 percent, to 23.7 percent of adult smokers in Minnesota being between 18 to 24 years old. And, 10 years after e-cigarette’s market emergence in 2009, smoking rates among current smokers aged 18 to 24 years old decreased by 61.2 percent. Indeed, in 2009, among current smokers in Minnesota, 23.7 percent were between 18 to 24 years old. In 2019, only 9.2 percent of current smokers were 18 to 24 years old.

Further e-cigarettes’ market emergence was associated with a larger decline in average annual percent decreases. Between 1998 and 2008, the percentage of current smokers aged 18 to 24 years old increased on average 2.7 percent each year. Between 2009 and 2019, annual percentage declines average at 2.5 percent. (See Supplemental Graph 2)

Wasted Tobacco Dollars

Deeply troubling with Bloomington’s proposed flavor ban is that Minnesota spends very little of existing tobacco monies on programs to help smokers quit.

Between 2000 and 2019, Minnesota allocated only $460.7 million towards tobacco control programs.[xiii] This is 6.3 percent of what Minnesota collected in cigarette taxes in the same 19-year time span and only 11.3 percent of tobacco settlement payments. To put it in further perspective, the amount of state funding allocated to tobacco control in 19 years is only four percent of the tax revenue and MTS payments Minnesota collected in 2019.

Rather than banning retailers from selling flavored tobacco and vapor products to adults, Bloomington City Council ought to urge the Minnesota State Legislature to allocate additional funding for local tobacco control programs. (See Supplemental Graph 3)

Flavors and Youth E-Cigarette Use

Despite media alarmism, many American high school students are not overwhelmingly using vapor products due to flavors. Indeed, in analyses of state youth tobacco use surveys, other factors including social sources are most often cited among youth for reasons to use e-cigarettes and vapor products.

For example, in 2017, of Connecticut high school students that had ever used an e-cigarette, 23.9 percent reported “flavors” as a reason for use. Conversely, 41.6 percent reported using vapor products because a “friend or family member used them,” and 33 percent cited “some other reason.”[xiv] 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.[xv]

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.”[xvi]

According to results from the 2018 YRBS, Maryland high school students reported using flavored vapor products, but flavors weren’t overwhelmingly cited by e-cigarette users as a reason for use.[xvii] When asked about the “main reason” Maryland high school users used flavors only 3.2 percent responded “flavors.” 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.”[xviii] 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.”[xix]

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.”[xx]

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.[xxi]

Lastly, in 2017, among all Virginia high school students, only 6.2 percent reported using e-cigarettes because of flavors, while 11.3 percent used them because a friend and/or family member used them.[xxii] 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.[xxiii]

(See Supplemental Graphs 4)

Effects of Flavor Bans

Flavor bans have had little effect on reducing youth e-cigarette use and may lead to increased combustible cigarette rates, as evidenced in San Francisco, California.[xxiv]

In April 2018, a ban on the sale of flavored e-cigarettes and vapor products went into effect in San Francisco and in January, 2020, the city implemented a full ban on any electronic vapor product. Unfortunately, these measures have failed to lower youth tobacco and vapor product use.

Data from an analysis of the 2019 Youth Risk Behavior Survey show that 16 percent of San Francisco high school students had used a vapor product on at least one occasion in 2019 – a 125 percent increase from 2017 when 7.1 percent of San Francisco high school students reported using an e-cigarette.[xxv] Daily use more than doubled, from 0.7 percent of high school students in 2017, to 1.9 percent of San Francisco high school students reporting using an e-cigarette or vapor product every day in 2019.

Worse, despite nearly a decade of significant declines, youth use of combustible cigarettes seems to be on the rise in Frisco. In 2009, 35.6 percent of San Francisco high school students reported ever trying combustible cigarettes. This figure continued to decline to 16.7 percent in 2017.  In 2019, the declining trend reversed and 18.6 percent of high school students reported ever trying a combustible cigarette. Similarly, current cigarette use increased from 4.7 percent of San Francisco high school students in 2017 to 6.5 percent in 2019.

An April 2020 study in Addictive Behavior Reports examined the impact of San Francisco’s flavor ban on young adults by surveying a sample of San Francisco residents aged 18 to 34 years.[xxvi] Although the ban did have an effect in decreasing vaping rates, the authors noted “a significant increase in cigarette smoking” among participants aged 18 to 24 years old.

Other municipal flavor bans have also had no effect on youth e-cigarette use.[xxvii] For example, Santa Clara County, California, banned flavored tobacco products to age-restricted stores in 2014. Despite this, youth e-cigarette use increased. In the 2015-16 California Youth Tobacco Survey (CYTS), 7.5 percent of Santa Clara high school students reported current use of e-cigarettes. In the 2017-18 CYTS, this increased to 10.7 percent.

Menthol Bans Have Little Effect on Smoking Rates, Lead to Black Markets, Lost Revenue and Will Create Racial Tension

Beyond e-cigarettes, policymakers’ fears about the role of menthol and flavorings in cigarettes and cigars are overblown and banning these products will likely lead to black markets.

Data from the National Health Interview Survey (NHIS) finds nearly a third of all American adult smokers smoke menthol cigarettes. In a 2015 NHIS survey, “of the 36.5 million American adult smokers, about 10.7 million reported that they smoked menthol cigarettes,” and white menthol smokers “far outnumbered” the black and African American menthol smokers.[xxviii]

Although lawmakers believe banning menthol cigarettes will deter persons from smoking those, such a ban will likely lead to black markets. A 2012 study featured in the journal Addiction found a quarter of menthol smokers surveyed indicated they would find a way to purchase, even illegally, menthol cigarettes should a menthol ban go into place.[xxix] Further, there is little evidence that smokers would actually quit under a menthol ban. A 2015 study in Nicotine & Tobacco Research found only 28 percent of menthol smokers would give up cigarettes if menthol cigarettes were banned.[xxx]

Moreover, there is no evidence to suggest that menthol cigarettes lead to youth tobacco use. Analysts at the Reason Foundation examined youth tobacco rates and menthol cigarette sales.[xxxi] The authors of the 2020 report found that states “with more menthol cigarette consumption relative to all cigarettes have lower rates of child smoking.” Indeed, the only “predictive relationship” is between child and adult smoking rates, finding that “states with higher rates of adult use cause higher rates of youth use.”

With certainty, a ban on flavored tobacco and vapor products would lead to a loss of revenue without decreasing smoking rates as menthol smokers in Connecticut are likely to travel to neighboring states to purchase menthol products. This has been demonstrated in Massachusetts, which banned the sale of flavored tobacco and vapor products, including menthol cigarettes and took effect June 1, 2020.

An analysis by the Tax Foundation found that “Massachusetts’ flavor ban has not limited use, just changed where Bay Staters purchase cigarettes.”[xxxii] The analysis noted that sales of cigarette tax stamps in the Northeast “have stayed remarkably stable,” and that “Massachusetts sales plummeted, but only because those sales went elsewhere.”

The Tax Foundation’s analysis found that sales of cigarettes “skyrocketed” in New Hampshire and Rhode Island – growing 55.8 percent and 56 percent, respectively, between June 2019 and June 2020.

Lawmakers should take note that menthol sales bans will strain minority communities. Although white Americans smoke more menthol cigarettes than black or African Americans, “black smokers [are] 10-11 times more likely to smoke” menthol cigarettes than white smokers.[xxxiii]

Given African Americans’ preference for menthol cigarettes, a ban on menthol cigarettes would force police to further scrutinize African Americans and likely lead to unintended consequences. 

A 2015 analysis from the National Research Council examined characteristics in the illicit tobacco market.[xxxiv] The researchers found that although lower income persons were less likely to travel to purchase lower-taxed cigarettes, “having a higher share of non-white households was associated with a lower probability of finding a local tax stamp” and “neighborhoods with higher proportions of minorities are more likely to have formal or informal networks that allow circumvention of the cigarette taxes.”

Lawmakers in Connecticut should reexamine the case of Eric Garner, a man killed in 2014 while being arrested for selling single cigarettes in the city. In a 2019 letter to the New York City council, Garner’s mother, as well as Trayvon Martin’s mother, implored officials to “pay very close attention to the unintended consequences of a ban on menthol cigarettes and what it would mean for communities of color.”[xxxv] Both mothers noted that a menthol ban would “create a whole new market for loosies and re-introduce another version of stop and frisk in black, financially challenged communities.”  

E-Cigarettes and Tobacco Harm Reduction

The evidence of harm associated with combustible cigarettes has been understood since the 1964 U.S. Surgeon General’s Report that smoking causes cancer. Research overwhelmingly shows the smoke created by the burning of tobacco, rather than the nicotine, produces the harmful chemicals found in combustible cigarettes.[xxxvi] There are an estimated 600 ingredients in each tobacco cigarette, and “when burned, [they] create more than 7,000 chemicals.”[xxxvii] As a result of these chemicals, cigarette smoking is directly linked to cardiovascular and respiratory diseases, numerous types of cancer, and increases in other health risks among the smoking population.[xxxviii]

For decades, policymakers and public health officials looking to reduce smoking rates have relied on strategies such as emphasizing the possibility of death related to tobacco use and implementing tobacco-related restrictions and taxes to motivate smokers to quit using cigarettes. However, there are much more effective ways to reduce tobacco use than relying on government mandates and “quit or die” appeals.

During the past 30 years, the tobacco harm reduction (THR) approach has successfully helped millions of smokers transition to less-harmful alternatives. THRs include effective nicotine delivery systems, such as smokeless tobacco, snus, electronic cigarettes (e-cigarettes), and vaping. E-cigarettes and vaping devices have emerged as especially powerful THR tools, helping nearly three million U.S. adults quit smoking from 2007 to 2015.

Indeed, an estimated 10.8 million American adults were using electronic cigarettes and vapor products in 2016.[xxxix] Of the 10.8 million, only 15 percent, or 1.6 million adults, were never-smokers, indicating that e-cigarettes are overwhelmingly used by current and/or former smokers.

E-cigarettes were first introduced in the United States in 2007 by Ruyan, a Chinese manufacturer.[xl] Soon after their introduction, Ruyan and other brands began to offer the first generation of e-cigarettes, called “cigalikes.” These devices provide users with an experience that simulates smoking traditional tobacco cigarettes. Cig-alikes are typically composed of three parts: a cartridge that contains an e-liquid, with or without nicotine; an atomizer to heat the e-liquid to vapor; and a battery.

In later years, manufacturers added second-generation tank systems to e-cigarette products, followed by larger third-generation personal vaporizers, which vape users commonly call “mods.”[xli] These devices can either be closed or open systems.

Closed systems, often referred to as “pod systems,” contain a disposable cartridge that is discarded after consumption. Open systems contain a tank that users can refill with e-liquid. Both closed and open systems utilize the same three primary parts included in cigalikes—a liquid, an atomizer with a heating element, and a battery— as well as other electronic parts. Unlike cig-alikes, “mods” allow users to manage flavorings and the amount of vapor produced by controlling the temperature that heats the e-liquid.

Mods also permit consumers to control nicotine levels. Current nicotine levels in e-liquids range from zero to greater than 50 milligrams per milliliter (mL).[xlii] Many users have reported reducing their nicotine concentration levels after using vaping devices for a prolonged period, indicating nicotine is not the only reason people choose to vape.

Health Effects of Electronic Cigarettes and Vapor Products

Despite recent media reports, e-cigarettes are significantly less harmful than combustible cigarettes. Public health statements on the harms of e-cigarettes include:

Public Health England: In 2015, Public Health England (PHE), a leading health agency in the United Kingdom and similar to the FDA found “that using [e-cigarettes are] around 95% safer than smoking,” and that their use “could help reducing smoking related disease, death and health inequalities.”[xliii] In 2018, the agency reiterated their findings, finding vaping to be “at least 95% less harmful than smoking.”[xliv]

As recent as February 2021, PHE provided the latest update to their ongoing report on the effects of vapor products in adults in the UK. The authors found that in the UK, e-cigarettes were the “most popular aid used by people to quit smoking [and] … vaping is positively associated with quitting smoking successfully.”[xlv]  

As recent as February 2021, PHE provided the latest update to their ongoing report on the effects of vapor products in adults in the UK. The authors found that in the UK, e-cigarettes were the “most popular aid used by people to quit smoking [and] … vaping is positively associated with quitting smoking successfully.”[xlvi]  

The Royal College of Physicians: In 2016, the Royal College of Physicians found the use of e-cigarettes and vaping devices “unlikely to exceed 5% of the risk of harm from smoking tobacco.”[xlvii] The Royal College of Physicians (RCP) is another United Kingdom-based public health organization, and the same public group the United States relied on for its 1964 Surgeon General’s report on smoking and health. 

The National Academies of Sciences, Engineering, and Medicine: In January 2018, the academy noted “using current generation e-cigarettes is less harmful than smoking.”[xlviii]

A 2017 study in BMJ’s peer-reviewed journal Tobacco Control examined health outcomes using “a strategy of switching cigarette smokers to e-cigarette use … in the USA to accelerate tobacco control progress.”[xlix] The authors concluded that replacing e-cigarettes “for tobacco cigarettes would result in an estimated 6.6 million fewer deaths and more than 86 million fewer life-years lost.”

An October 2020 review in the Cochrane Library Database of Systematic Reviews analyzed 50 completed studies which had been published up until January 2020 and represented over 12,4000 participants.

The authors found that there was “moderate-certainty evidence, limited by imprecision, that quit rates were higher in people randomized to nicotine [e-cigarettes] than in those randomized to nicotine replacement therapy.” The authors found that e-cigarette use translated “to an additional four successful quitters per 100.” The authors also found higher quit rates in participants that had used e-cigarettes containing nicotine, compared to the participants that had not used nicotine.

Notably, the authors found that for “every 100 people using nicotine e-cigarettes to stop smoking, 10 might successfully stop, compared with only six of 100 people using nicotine replacement therapy or nicotine-free e-cigarettes.”

The substitution of e-cigarettes for combustible cigarettes could also save the state in health care costs.

It is well known that Medicaid recipients smoke at rates of twice the average of privately insured persons, according to the Centers for Disease Control and Prevention (CDC). In 2013, “smoking-related diseases cost Medicaid programs an average of $833 million per state.”[l]

A 2015 policy analysis by State Budget Solutions examined electronic cigarettes’ effect on Medicaid spending. The author estimated Medicaid savings could have amounted to $48 billion in 2012 if e-cigarettes had been adopted in place of combustible tobacco cigarettes by all Medicaid recipients who currently consume these products.[li]

A 2017 study by R Street Institute examined the financial impact to Medicaid costs that would occur should a large number of current Medicaid recipients switch from combustible cigarettes to e-cigarettes or vaping devices. The author used a sample size of “1% of smokers [within] demographic groups permanently” switching. In this analysis, the author estimates Medicaid savings “will be approximately $2.8 billion per 1 percent of enrollees,” over the next 25 years.[lii]

Conclusion & Policy Recommendations:

It is disingenuous that lawmakers would purport to protect public health yet restrict access to safer products. Rather than restricting access to tobacco harm reduction products and flavored tobacco products, lawmakers should encourage the use of e-cigarettes and work towards earmarking adequate funding for smoking education and prevention programs.

  • To address youth use of age-restricted products, as well as adult use of deadly combustible cigarettes, Minnesota must allocate additional funding from revenue generated from existing excise taxes and settlement payments. In 20 years, the Gopher State allocated only $460.7 million toward tobacco control programs. During the same period, Minnesota received more than $7.364 billion in cigarette tax revenue and $4.073 billion in tobacco tax settlement payments.
  • Many Bloomington youth are not using vapor products. In 2019, 83 percent of Bloomington high school students reported not using a vapor product and only three percent daily vapor product use. Further, combustible cigarette use is at an all-time low, with 98 percent of Bloomington high schoolers reporting not smoking cigarettes in the 30 days prior to survey, compared to five percent of high school students who reported daily cigarette use in 2004.
  • Current youth surveys do not inquire into reasons for youth e-cigarette use, lawmakers should require the Departments of Health and Education to construct a survey that can fully capture the reasons why youth are using e-cigarettes, as well as how they are obtaining them. Such data would help guide future policies that can lower youth e-cigarette use, while maintaining adult access.
  • Bloomington tobacco and vapor retailers do a good job in not selling to minors, the city’s education and health departments must work with tobacco and vapor product retailers to ensure there are no sales of age-restricted products to minors. Any solution to address such strategies must include all actors – not only proponents of draconian prohibitionist policies.
  • Lawmakers’ must face the reality of a larger illicit market in the wake of a ban on flavored tobacco and vapor products – prohibition does not automatically translate into reduced use, just different markets.

[i] Minnesota Department of Education, “County Tables – Minnesota Student Survey,” 2019, https://www.health.state.mn.us/data/mchs/surveys/mss/countytables.html. 

[ii] Minnesota Department of Education, “Minnesota Student Survey Reports 2013-2019,” 2019, https://public.education.mn.gov/MDEAnalytics/DataTopic.jsp?TOPICID=242.

[iii] “BRFSS Prevalence & Trends Data,” Centers for Disease Control and Prevention, 2019, https://www.cdc.gov/brfss/brfssprevalence/.

[iv] Kids Count Data Center, “Total population by child and adult populations in the United States,” The Annie E. Casey Foundation, September 2020, https://datacenter.kidscount.org/data/tables/99-total-population-by-child-and-adult-populations#detailed/1/any/false/1729,37,871,870,573,869,36,868,867,133/39,40,41/416,417.

[v] Minnesota, Tobacco Harm Reduction 101, https://www.thr101.org/minnesota.

[vi] Vapor Technology Association, “The Economic Impact of the Vapor Industry MINNESOTA,” 2019, https://vta.guerrillaeconomics.net/reports/e4e2ad3b-ca91-427e-9bf3-056543b2355b?.

[vii] Teresa W. Wang et al., “National and State-Specific Unit Sales and Prices for Electronic Cigarettes, United States, 2012-2016,” Preventing Chronic Disease, Centers for Disease Control and Prevention, August 2, 2018, https://www.cdc.gov/pcd/issues/2018/17_0555.htm.

[viii] Adam McCann, “The Real Cost of Smoking by State,” WalletHub, January 15, 2020, https://wallethub.com/edu/the-financial-cost-of-smoking-by-state/9520.

[ix] BRFSS Prevalence & Trends Data, supra note 3.

[x] U.S. Food and Drug Administration, “Compliance Check Inspections of Tobacco Product Retailers,” Accessed November 16, 2020, https://www.accessdata.fda.gov/scripts/oce/inspections/oce_insp_searching.cfm.

[xi] “FDA finalizes enforcement policy on unauthorized flavored cartridge-based e-cigarettes that appeal to children, including fruit and mint,” January 2, 2020, https://www.fda.gov/news-events/press-announcements/fda-finalizes-enforcement-policy-unauthorized-flavored-cartridge-based-e-cigarettes-appeal-children.

[xii] National Center for Chronic Disease Prevention and Health Promotion, “E-Cigarette Use Among Youth and Young Adults: A Report of the Surgeon General,” 2016, https://www.ncbi.nlm.nih.gov/books/NBK538679/.

[xiii] Campaign for Tobacco-Free Kids, “Appendix A: History of Spending for State Tobacco Prevention Programs,” 2021, https://www.tobaccofreekids.org/assets/factsheets/0209.pdf.

[xiv] Connecticut Department of Public Health, “Connecticut Youth Tobacco Survey Results 2017 Surveillance Report,” 2017, https://portal.ct.gov/-/media/Departments-and-Agencies/DPH/dph/hems/tobacco/PDF/2017-CT-Youth-Tobacco-Survey-Results.pdf?la=en.

[xv] 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.

[xvi] 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.

[xvii] 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.

[xviii] 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.

[xix] 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. 

[xx] 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.

[xxi] 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.

[xxii] Virginia Department of Health, “Virginia High School Survey Detail Tables – Weighted Data,” 2017 Youth Risk Behavior Survey, 2017, https://www.vdh.virginia.gov/content/uploads/sites/69/2018/04/2017VAH-Detail-Tables.pdf.

[xxiii] 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.

[xxiv] Lindsey Stroud, “Vaping Up, Smoking Increasing Among Teens in San Francisco – Despite Bans,” Tobacco Harm Reduction 101, July 28, 2020, https://www.thr101.org/research/2020/vaping-up-smoking-increasing-among-teens-in-san-francisco-despite-bans.

[xxv] Centers for Disease Control and Prevention, “San Francisco, CA 2017 Results,” High School Youth Risk Behavior Survey, 2017, https://nccd.cdc.gov/youthonline/App/Results.aspx?LID=SF.

[xxvi] Yong Yang et al., “The Impact of a Comprehensive Tobacco Product Flavor Ban in San Francisco Among Young Adults,” Addictive Behavior Reports, April 1, 2020, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7186365/#!po=0.961538.

[xxvii] Lindsey Stroud, “Flavor Bans Do Not Reduce Youth E-Cigarette Use,” Tobacco Harm Reduction 101, 2019, https://www.thr101.org/research/2019/flavor-bans-do-not-reduce-youth-e-cigarette-use.

[xxviii] Brad Rodu, “Who Smokes Menthol Cigarettes?” Tobacco Truth, December 4, 2018, https://rodutobaccotruth.blogspot.com/2018/12/who-smokes-menthol-cigarettes.html.

[xxix] RJ O’Connor et al., “What would menthol smokers do if menthol in cigarettes were banned?” Addiction, April 4, 2012, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3370153/.

[xxx] Olivia A. Wackowski, PhD, MPH, et al., “Switching to E-Cigarettes in the Event of a Menthol Cigarette Ban,” Nicotine & Tobacco Research, January 29, 2015, https://www.researchgate.net/publication/271592485_Switching_to_E-Cigarettes_in_the_Event_of_a_Menthol_Cigarette_Ban.

[xxxi] Guy Bentley and J.J. Rich, “Does Menthol Cigarette Distribution Affect Child or Adult Cigarette Use?” Policy Study, Reason Foundation, January 30, 2020, https://reason.org/policy-study/does-menthol-cigarette-distribution-affect-child-or-adult-cigarette-use/.

[xxxii] Urlrik Boesen, “Massachusetts Ban of Flavored Cigarettes Is Getting Expensive,” Tax Foundation, August 3, 2020, https://taxfoundation.org/massachusetts-ban-on-flavored-cigarettes-is-getting-expensive/.

[xxxiii] D. Lawrence et al., “National patterns and correlates of mentholated cigarette use in the United States,” Addiction, December, 2010, https://www.ncbi.nlm.nih.gov/pubmed/21059133.

[xxxiv] National Research Council, “Understanding the U.S. Illicit Tobacco Market: Characteristics, Policy Context and Lessons from International Experiences,” The National Academies Press, 2015, https://www.nap.edu/download/19016.

[xxxv] Carl Campanile, “Menthol cig ban will lead to more stop-and-frisk: Moms of Garner, Martin,” New York Post, October 16, 2019, https://nypost.com/2019/10/16/menthol-cig-ban-will-lead-to-more-stop-and-frisk-moms-of-garner-martin/.

[xxxvi] Brad Rodu, For Smokers Only: How Smokeless Tobacco Can Save Your Life, Sumner Books, 1995, p. 103.

[xxxvii] American Lung Foundation, “What’s In a Cigarette?,” February 20, 2019, https://www.lung.org/stop-smoking/smoking-facts/whats-in-a-cigarette.html. 

[xxxviii] Centers for Disease Control and Prevention, “Health Effects of Cigarette Smoking,” January 17, 2018, https://www.cdc.gov/tobacco/data_statistics/ fact_sheets/health_effects/effects_cig_smoking/index.htm.

[xxxix] Mohammadhassan Mirbolouk, MD et al., “Prevalence and Distribution of E-Cigarette Use Among U.S. Adults: Behavioral Risk Factor Surveillance System, 2016,”  Annals of Internal Medicine, October 2, 2018, https://www.acpjournals.org/doi/10.7326/M17-3440. 

[xl] Consumer Advocates for Smoke-Free Alternatives Association, “A Historical Timeline of Electronic Cigarettes,” n.d., http://casaa.org/historicaltimeline-of-electronic-cigarettes.

[xli] WHO Framework Convention on Tobacco Control, “Electronic Nicotine Delivery Systems and Electronic Non-Nicotine Delivery Systems (ANDS/ ENNDS),” August 2016, http://www.who.int/fctc/cop/cop7/FCTC_ COP_7_11_EN.pdf.

[xlii] Vaping 360, “Nicotine Strengths: How to Choose What’s Right for You,” February 26, 2019, https://vaping360.com/best-e-liquids/nicotine-strengthspercentages.

[xliii] A. McNeill et al., “E-cigarettes: an evidence update,” Public Health England, August, 2015, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm.

[xliv] A. McNeill et al., “Evidence review of e-cigarettes and heated tobacco products 2018,” Public Health England, February 2018,  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/684963/Evidence_review_of_e-cigarettes_and_heated_tobacco_products_2018.pdf.

[xlv] A. McNeill et al., “Vaping in England: an evidence update including vaping for smoking cessation, February 2021,” Public Health England, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/962221/Vaping_in_England_evidence_update_February_2021.pdf.

[xlvi] A. McNeill et al., “Vaping in England: an evidence update including vaping for smoking cessation, February 2021,” Public Health England, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/962221/Vaping_in_England_evidence_update_February_2021.pdf.

[xlvii] Royal College of Physicians, Nicotine without Smoke: Tobacco Harm Reduction, April, 2016, https://www.rcplondon.ac.uk/projects/outputs/nicotine-without-smoke-tobacco-harm-reduction-0.

[xlviii] Committee on the Review of the Health Effects of Electronic Nicotine Delivery Systems, “Public Health Consequences of E-Cigarettes,” The National Academies of Science, Engineering, and Medicine, 2018, https://www.nap.edu/catalog/24952/public-health-consequences-of-e-cigarettes.

[xlix] David T. Levy et al., “Potential deaths averted in USA by replacing cigarettes with e-cigarettes,” Tobacco Control, October 2, 2017, http://tobaccocontrol.bmj.com/content/early/2017/08/30/tobaccocontrol-2017-053759.info. 

[l] American Lung Foundation, “Approaches to Promoting Medicaid Tobacco Cessation Coverage: Promising Practices and Lessons Learned,” June 9, 2016, https://web.archive.org/web/20170623183710/https://www.lung.org/assets/documents/advocacy-archive/promoting-medicaid-tobacco-cessation.pdf. Accessed June 23, 2017.

[li] J. Scott Moody, “E-Cigarettes Poised to Save Medicaid Billions,” State Budget Solutions, March 31, 2015, https://www.heartland.org/_template-assets/documents/publications/20150331_sbsmediciadecigarettes033115.pdf.

[lii] Edward Anselm, “Tobacco Harm Reduction Potential for ‘Heat Not Burn,’” R Street Institute, February 2017, https://www.rstreet.org/wp-content/uploads/2017/02/85.