Testimony in Opposition to Minnesota HB 2177, A Bill to Ban Flavored Tobacco
Testimony from:
Jeffrey S. Smith, Senior Fellow, Integrated Harm Reduction, R Street Institute
R Street Testimony in opposition to HF 2177, “A bill for an act relating to health; prohibiting the sale or offer for sale of flavored products.”
March 5, 2024
Committee on Health Finance and Policy
Chairperson Liebling and members of the committee,
My name is Jeff Smith, and I am a senior fellow on the Integrated Harm Reduction team at the R Street Institute, which 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. Our efforts to promote tobacco harm reduction are why we have a particular interest in HF 2177.
The R Street Institute has long-standing concerns about the health-related consequences of inhaling combustible cigarettes and has been a staunch advocate for limiting the sale of nicotine-related products to those who are 21 years of age and older. 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).
We believe HF 2177 would greatly hamper adult smokers on their journey to a smoke-free life by reducing access to flavored reduced-risk products and increasing the costs associated with purchasing them. Along with varied product types, access to a wide variety of flavors has been shown to be a key attribute that helps adult smokers switch from cigarettes to less harmful products. However, removing access to flavored alternatives would greatly curtail the positive movement toward reducing the consumption of combustible products for Minnesota’s citizens.
Simply put, flavors help people quit smoking and stay smoke-free.
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’s participants attributed their success, which was verified by exhaled carbon monoxide readings, to the availability of non-tobacco- and non-menthol-flavored ENDS products. Just recently, the New England Journal of Medicine (NEJM) published the most comprehensive study on how the use of ENDS products aids those that wish to quit smoking to do so. The researchers were able to clearly show that providing a wide variety of ENDS products (flavors and nicotine levels) significantly improved quit rates of smokers, at a level much higher than traditional nicotine replacement therapy.[2] The findings were so dramatic that the NEJM published a commentary alongside the paper by Dr. Nancy Rigotti, the director of the Tobacco Research and Treatment Center at Massachusetts General Hospital, in which she stated that “the burden of tobacco-related diseases is too big for potential solutions such as e-cigarettes to be ignored.”[3]
The appeal and usage of multiple flavor varieties of ENDS among adult current, former, and never-tobacco users has also been investigated. Such studies have suggested that ENDS present potential benefits for current cigarette users without posing a substantial risk of initiation by tobacco non-users, including young adults.[4] In fact, in locations where flavor bans are put into place, smoking rates have risen (in both adult and underage consumers).[5] All agree that reducing youth access to any nicotine product—flavored or not—must be a priority.[6] Because certain flavors, like fruit, candy, dessert, and menthol, are particularly appealing to young adults and adolescents, who are more likely to initiate and continue smoking flavored products, deterring and preventing use is critically important.[7] To help address this concern, on Dec. 20, 2019, Tobacco 21 (also called “T21”) was signed into law as an amendment to the Federal Food, Drug, and Cosmetic Act.[8] 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.[9] In 2019, it was estimated that the current use of e-cigarettes by underage individuals (11th graders) in Minnesota was 26% and has dropped to 14% as of 2022.[10] These decreases are most likely due to Tobacco 21 laws being enforced and the decline of youth use in Minnesota mirror what is being observed at the national level.[11]
The overwhelming majority of e-cigarettes used by youth were products that are illegally in the marketplace, most of which have been imported illegally from China. These products have not filed applications for approval with the FDA or did and had their application denied. There are a wide variety of brand names associated with these illegal vapes, including Elf Bar, Kangvape, FUME, and Mr. Fog, but the packaging can also be changed by the importer to represent additional brand names and marketing imagery. Attempting to track and enforce all of the hundreds of potential brands of illegal products is a herculean task. There are multiple tools to address underage use, from enforcement for purchasing to targeted prevention campaigns. Recently, localities have even gone so far as to install vape detectors in schools.[12]
Current, federally-funded initiatives are attempting to better evaluate the role of flavors in smoking cessation at the population level by standardizing research measures. We should anticipate that there will eventually be FDA-authorized flavored reduced-risk products available for adult consumers to help support them on their journey toward a combustion-free life. A broad-reaching flavor ban, such as the one that HF 2177 would implement, would act to block any future FDA-approved flavored product from being legally marketed in Minnesota.
The R Street Institute urges you to consider all facets of how access to reduced-risk products impacts the health of Minnesota citizens as you review HF 2177. In 2011, the rate of smoking in Minnesota was over 19.1%, which dropped to only 13.8% in 2022.[13] ENDS use increased in adults to 4.9% during that same period.[14] These data are clear; adult smokers are migrating away from cigarettes toward less harmful ENDS products, and that is a clear public health win for Minnesotans. Broad flavor bans on reduced-risk products will lead to more people smoking and that will end up costing the state a lot more financially as the costs associated with smoking-related health care costs in the state are already estimated to be nearly $4.7 billion.[15] We urge adjustments be made to HB 7225 that allow pathways for FDA-approved flavored products as they will curtail the positive health gains for your citizens in its tracks.
Thank you,
Jeffrey S. Smith, PhD
Senior Fellow, Integrative Harm Reduction
R Street Institute
[email protected]
[1] Tackett, Alayna P, William V Lechner, Ellen Meier, DeMond M Grant, Leslie M Driskill, Noor N Tahirkheli, and Theodore L Wagener. “Biochemically Verified Smoking Cessation and Vaping Beliefs among Vape Store Customers.” Addiction 110, no. 5 (2015): 868-74. https://onlinelibrary.wiley.com/doi/abs/10.1111/add.12878
[2] Auer, Reto, Anna Schoeni, Jean-Paul Humair, Isabelle Jacot-Sadowski, Ivan Berlin, Mirah J Stuber, Moa Lina Haller, et al. “Electronic Nicotine-Delivery Systems for Smoking Cessation.” New England Journal of Medicine 390, no. 7 (2024): 601-10. https://www.nejm.org/doi/full/10.1056/NEJMoa2308815
[3] Rigotti, Nancy A. “Electronic Cigarettes for Smoking Cessation—Have We Reached a Tipping Point?”, 664-65Mass Medical Soc, 2024. https://www.nejm.org/doi/pdf/10.1056/NEJMe2314977
[4] McDowell, Elliott H, Leiyu Yue, Jennifer T Lyden, and William R Bagwell. “Appeal and Likelihood of Use of Multiple Flavor Varieties of Bidi® Stick Electronic Nicotine Delivery Systems among Adult Current, Former, and Never Tobacco Users in the United States.” (2022). https://www.researchsquare.com/article/rs-1962398/v1
[5] Friedman, Abigail, Alex C Liber, Alyssa Crippen, and Michael Pesko. “E-Cigarette Flavor Restrictions’ Effects on Tobacco Product Sales.” Available at SSRN (2023). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4586701
[6] Farzal, Zainab, Martha F Perry, Wendell G Yarbrough, and Adam J Kimple. “The Adolescent Vaping Epidemic in the United States—How It Happened and Where We Go from Here.” JAMA Otolaryngology–Head & Neck Surgery 145, no. 10 (2019): 885-86. https://jamanetwork.com/journals/jamapediatrics/article-abstract/2592300?utm_campaign=scite&utm_source=scite&utm_medium=referral
[7] van der Eijk, Yvette, Xian Yi Ng, and Jeong Kyu Lee. “Cross-Sectional Survey of Flavored Cigarette Use among Adult Smokers in Singapore.” Tobacco Induced Diseases 19 (2021). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8173988/
[8] U.S. Food & Drug Administration, “Tobacco 21”, https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/tobacco-21
[9] CDC/FDA, National Youth Tobacco Survey, https://www.cdc.gov/mmwr/volumes/72/wr/mm7244a1.htm?s_cid=mm7244a1_w
[10] Minnesota Department of Health, Minnesota Student Survey (2019). https://www.health.state.mn.us/news/pressrel/2019/studentsurvey101719.html; Minnesota Department of Health, Minnesota Student Survey (2022). https://www.health.state.mn.us/news/pressrel/2022/stsurvey122322.html
[11] CDC/FDA, National Youth Tobacco Survey, https://www.cdc.gov/mmwr/volumes/72/wr/mm7244a1.htm?s_cid=mm7244a1_w
[12] Mia Nelson, “Lynchburg City Schools installs vape detectors in high schools,” ABC 13 News, March 16, 2023. https://wset.com/news/local/lynchburg-city-schools-installs-vape-detectors-ec-glass-heritage-high-school-vaping-tobacco-thc-weed-pen-dr-derrick-brown-director-student-services-lcs-virginia-march-2023.
[13] Minnesota Department of Health, Downward Trend in Adult Cigarette Smoking Continues (2022), https://www.health.state.mn.us/communities/tobacco/data/docs/briefs/6-21-22_brfss_adult.pdf
[14] Ibid.
[15]Blue Cross / Blue Shield, The Cost of Smoking Report (2021). https://www.centerforpreventionmn.com/cost-of-smoking/