On Tuesday, June 15, the Council of the District of Columbia (Council) is reading a bill that would ban the sale of all flavored tobacco products. This ban would apply across the full spectrum of tobacco products, including combustible, non-combustible and electronic nicotine delivery systems (ENDS). Notably, the Council is skipping a public hearing on this bill, which is a departure from standard processes.

While the bill may be well-intentioned, banning all flavored products is not an effective harm reduction approach to tobacco control. Although there are potential public health gains from banning flavored tobacco products, there are also potential unintended consequences. The Council should consider all the possible outcomes and recognize that regulation of flavored products is already progressing through the federal government. Further, the Council should hear from its constituents about how a flavor ban will impact them. By skipping the public hearing of this bill, the Council is not listening to the true experts: people who will be directly impacted by the flavor ban.

Flavor bans have unintended consequences

If we have learned anything from alcohol and cannabis, it is that prohibition does not stop people from using banned products. For flavored tobacco products, there is some evidence that people will continue to access their preferred product through illicit markets following a ban. For example, one study examining long-term e-cigarette users found that 50 percent of participants indicated that they would “find a way” to access their preferred products. For some, this may mean buying online, for others it may mean turning to illicit markets. As we saw with the outbreak of e-cigarette, or vaping, product use-associated lung injury (EVALI) that was caused by illicit THC vaping cartridges, unregulated products have the potential to cause severe health problems for users. It stands to reason that banning all flavored tobacco products could result in similar harms as consumers seek out illicit, unregulated versions of their preferred flavored products.

Prohibition can exacerbate social and racial injustice

Additionally, there is concern about the social justice implications of a flavor ban. The bill includes a provision that allows the Attorney General to investigate and prosecute suspected violations of the ban as well as fines associated with the sale of flavored products. The Council Office on Racial Equity reviewed the bill and determined that while it “has the potential to advance racial equity by improving health outcomes, enforcement of the bill has the potential to exacerbate racial inequity in economic and social justice outcomes.”

Banning flavored tobacco products may not decrease youth vaping

The rise in youth vaping rates is one common reason that jurisdictions propose flavor bans. However, while youth vaping is something that should concern everyone, there is evidence that eliminating flavors may not have the desired effect of decreasing youth vaping. For one, according to 2019 Centers for Disease Control data, 55.3 percent of students cited curiosity as the reason they used e-cigarettes. The second most common reason—cited by 30.8 percent of students—was e-cigarette use by family members or friends. Finally, flavors, with 22.4 percent, were the third most common reason cited for use of e-cigarettes. This suggests that a flavor ban may not deter many young people from trying e-cigarettes.

Similarly, a recent study showed that after San Francisco banned all flavored tobacco products there was a significant increase in youth use of combustible cigarettes compared to cities without flavor bans. Although there is no way to know if the findings for this study are generalizable to other jurisdictions, the results should give lawmakers pause before enacting flavor bans.

Flavor bans negatively impact adult smokers

Banning flavored tobacco products may also have negative effects on adult smokers. A small but increasing body of research indicates that flavors may be an important factor in encouraging smokers to transition to e-cigarettes. As such, while bans on flavored ENDS products will likely reduce overall vaping, they may also hinder smokers’ ability or desire to quit or cut back on use of combustible cigarettes. For example, the International Journal of Environmental Research and Public Health reports that limiting flavor choices negatively influences user experience. Of e-cigarette-using, former and current adult smokers, about 40 percent predict that removing their ability to choose flavors would make them less likely to remain abstinent or attempt to quit smoking. In fact, data suggests that current smokers prefer the flavor of traditional tobacco, while former smokers prefer fruit and sweet flavors.

Moreover, it has been demonstrated that e-cigarette users who use non-tobacco flavors, including menthol and non-menthol flavors, are more likely to completely switch from combustible cigarettes than those who choose tobacco flavors. Flavored e-liquids are yet another way that e-cigarettes can help smokers disassociate combustible cigarettes—and their characteristic flavor—from the effects of nicotine.

Federal action is underway that makes this bill unnecessary

It is also important to note that regulation of flavored tobacco products is already progressing through the federal government. With respect to flavored combustible tobacco products, the Food and Drug Administration (FDA) indicated in April 2021 that it is committed to banning menthol cigarettes and flavored cigars. For alternative nicotine delivery systems, such as e-cigarettes, the FDA is in the process of reviewing Pre-market Tobacco Product Applications (PMTA). After September 2021, all alternative nicotine delivery systems must have a PMTA in order to stay on the market. Given the stringent evaluation system and extensive data required to receive a PMTA, it is likely that many flavored and unflavored products will be cleared from the market in just a few months. Since the PMTA evaluation process ensures that products are “appropriate for the protection of public health,” preemptively banning all flavored products will prevent the realization of any potential public health benefits these products could confer.

The Council’s flavor ban bill is being rushed through without adequate input from residents or consideration for the potential consequences. At a minimum, the Council should follow appropriate procedures for hearing public comments before moving forward. Beyond hearing public comments, the Council should consider the social justice implications, the impact of illicit markets, and the effect on smokers and young people.

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