R Street Testimony in Opposition of the Denver City Council Restricting the Sale of Flavored Reduced Risk Nicotine Products

Testimony from:

Jeffrey S. Smith, Senior Fellow, Integrated Harm Reduction, R Street Institute

R Street Testimony in Opposition of the amending Chapters 24 and 34 of the Revised Municipal Code

regarding the sale of tobacco products, including flavored tobacco products.

December 4th, 2024

Denver City Council

Council member Amanda P. Sandoval and members of the Denver City Council,

My name is Jeff Smith, and I am a senior fellow on the Integrated Harm Reduction team at the R Street Institute. The R Street Institute is a nonprofit, nonpartisan public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas. The R Street Institute has been a staunch advocate for restricting the sale of nicotine-related products to those who are 21 years of age and older and supported national efforts in 2019 to raise the age to 21 to purchase such products.

In parallel, R Street is also concerned with the health-related consequences of inhaling combustible cigarette smoke by adult consumers. We strongly support varied pathways for quitting smoking, which include access to a wide array of alternative, reduced-risk nicotine products, including Electronic Nicotine Delivery Systems (ENDS), Heated Tobacco Systems (HnB) and Oral Tobacco and Nicotine Products (Snus and Nicotine Pouches). Today, we are, as always, concerned about youth access to any product that could generate harm, but fear that the Denver City Council’s proposed actions will do more harm than good.

The proposed regulations aim to further reduce youth access by banning the sales of all flavored nicotine products in Denver. While RSI applauds City Council’s goal of preventing youth use of such products, we are concerned that restricting sales of these established reduced-risk products will do little to protect young people while unintentionally harming adult smokers and, with them, the health of the Denver community. While flavor bans seem like a reasonable strategy to limit youth access at first glance, these restrictions are misguided for several reasons.

About a decade ago, scientific evidence emerged demonstrating the importance of non-tobacco-flavored reduced-risk products. In 2015, researchers reported that 66 percent of those who independently chose to switch to novel ENDS products were able to completely stop smoking cigarettes.^[1] Most of the study participants attributed their success, which was verified by exhaled carbon monoxide readings, to the availability of non-tobacco- and non-menthol-flavored ENDS products. The appeal and likelihood of use of multiple flavor varieties of ENDS among adult current, former and never-tobacco users have also been investigated, suggesting potential benefits for current cigarette users without posing a substantial risk of initiation by tobacco non-users, including young adults.^[2] In fact, in locations where flavor bans are put into place, smoking rates rise (in both adult and underage consumers).^[3] 

The proposed regulation attempts to curb youth use of tobacco products have been squarely focused on prohibition. However, in other states that have attempted to curb youth use through prohibitionary approaches, the outcome has led to several unintended consequences. For example, in Massachusetts, where lawmakers have not only banned all flavored products and applied a 75% excise tax on ENDS – commonly known as vapes –the outcome was an increase in illicit tobacco products in their communities.^[4] 

In California, a state that has applied the most stringent flavor prohibitions, the impact on access to flavored products was hindered very little, and smoking rates actually increased.^[5] This phenomenon was validated by a recent study where investigators showed that following flavor bans, the number of cigarettes used increased by 12 for every flavored pod not sold.^[6] So regardless of a ban on flavored products existing, the behavior of the individuals did not change, at best, or did, but it led to individuals using products (cigarettes) that carry a substantially greater health risk.

Implementing the proposed regulations will also place additional barriers in front of members of your community who are on a journey to a combustion-free life. If cigarettes are still readily available in gas stations and convenience stores, but access to flavored reduced-risk products is only available outside of your city or via online purchases, the citizen will have to exert additional effort to obtain products that, if they switched completely, have been shown to improve their health dramatically.^[7] While to some, this additional effort may seem minimal, but to a smoker in the transition process it could be the difference between continuing to smoke versus a safer alternative.

Additionally, the proposed regulation will limit access to products that receive approval from the FDA Center for Tobacco Products (CTP). Though, at this point, the CTP has only approved one menthol-flavored ENDS product, the center has said several times that they expect to receive applications that meet the scientific justifications required for marketing flavored reduced-risk products in the United States. Local communities will then have to decide whether to enforce (or modify) their current laws to be aligned with what is allowed across the USA.

Finally, there is a financial cost to the city as well. The losses from sales of these flavored products will negatively impact the retailers in your community dramatically. This will put additional stress on the owners, requiring the reduction of staffing, reduced hours and even the potential closure of these important small businesses.^[8] If these regulations are passed, the business community will suffer a net loss.

A more effective approach to curbing youth access is the implementation and enforcement of Tobacco 21. On Dec. 20, 2019, Tobacco 21 (also called “T21”) was signed into law as an amendment to the Federal Food, Drug, and Cosmetic Act.^[9] This law made it illegal for anyone under the age of 21 to purchase any tobacco or nicotine product, and it has drastically decreased the use of such products among underage individuals. The existence of this law is a primary driver for the reduction of youth vaping across the country.^[10] 

Nationally, the first line of defense against youth access to adult-only products has been retailers – primarily gas stations and convenience stores. For decades, these types of establishments have had methods to effectively manage the age verification process at point-of-sale for age-restricted merchandise such as alcohol, lottery tickets, and tobacco/nicotine products. These methods are state-of-the-art, and specific training and standard operating procedures are established and function well within the workflow of these vital community establishments.^[11]

Continued access to flavored reduced-risk products is critical to supporting Denver’s adult smokers’ transition to a healthier life. While further restricting youth access is a laudable goal that we share, the proposed regulation is a solution in search of a problem. It will only complicate the ability of adult smokers interested in cessation to obtain safer alternatives to combustible cigarettes. As such, the R Street Institute encourages you to consider how access to reduced-risk products impacts the health of all community members when considering important regulations such as the one being discussed by the Denver City Council. We strongly urge you to reject this misguided aspect of the regulations under review.

Thank you,

Jeffrey S. Smith, PhD

Senior Fellow, Integrative Harm Reduction

R Street Institute

jsmith@rstreet.org