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

R Street Testimony in opposition of HB 1778, a bill to Prohibits the sale of flavored tobacco products and mislabeled e-liquid products that contain nicotine.
February 02, 2024

Hawai’i House Committee on Health and Homelessness

Chairwoman Belatti 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. 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. Our efforts to promote tobacco harm reduction are why we have a particular interest in HB 1778.

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 HB 1778 would greatly hamper adult smokers on their journey to a smoke-free life. 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 away from cigarettes. Removing access to flavored alternatives would greatly curtail the positive movement toward reducing the consumption of combustible products for the citizens of Hawai’i.

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]

Simply put, flavors help people quit smoking and stay smoke-free.

Unfortunately, around the same time, the underage use of vapes (both nicotine and non-nicotine) began to increase.[4] All agree that reducing youth access to any nicotine product—flavored or not—must be a priority.[5] 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.[6] 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.[7] 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.[8]

Since the establishment of T21, youth ENDS use rates have dropped. In Hawai’i, lifetime e-cigarette use among Hawai’i high schoolers declined by 32.9 percent to 32.4 percent between 2019 and 2021, with current use decreasing by 51.6 percent to 14.8 percent among high school students. In 2021, approximately 7,760 Hawai’ian high school students were vaping, compared to 83,012 Hawai’ian adults aged 18 and over who were currently vaping. This indicates that for every individual high schooler vaping in 2021 in Hawai’i, more than ten adults were using e-cigarettes.[9] What the Hawai’i data leaves out, and what the NYTS discovered, is that 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 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 would be a very difficult task.

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 HB 1778 would implement, would act to block any future FDA-CTP-approved flavored product from being legally marketed in Hawai’i.

A more proactive approach at this time would be to establish a state product registry such as described in HB 2794. The establishment of a product registry will clearly identify to both retailers and those in law enforcement which products are legal to sell, and which ones should be cleared from the shelves. Product registries – also known as directories – have been adopted in several states (ex. Alabama, Louisiana, and Oklahoma), and are currently being considered by several others across the country.

Additionally, 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.[10] 

The R Street Institute urges you to consider all facets of how access to reduced-risk products impact the health of Hawai’ian citizens as you review HB 1778. In 2022, the rate of Hawai’ian adults who smoke has dropped from over 15 percent in 2011 down to 10 percent in 2022.[11] In 2022, an estimated 100,573 Hawai’ian adults (or nearly 9 percent) were currently using e-cigarettes. This is over a 20 percent increase from 2021 where just over 7 percent reported current e-cigarette use.[12] These data are clear for the state of Hawai’i; adult smokers are migrating away from cigarettes toward less harmful ENDS products and that is a clear public health win for the state. The passage of HB 1778 would stop this positive trend 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] 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

[3] 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

[4] 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/jamaotolaryngology/article-abstract/2748897

[5] 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

[6] 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/

[7] U.S. Food & Drug Administration, “Tobacco 21”, https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/tobacco-21

[8] CDC/FDA, National Youth Tobacco Survey, https://www.cdc.gov/mmwr/volumes/72/wr/mm7244a1.htm?s_cid=mm7244a1_w

[9] Ambrose, Bridget K, Brian L Rostron, Sarah E Johnson, David B Portnoy, Benjamin J Apelberg, Annette R Kaufman, and Conrad J Choiniere. “Perceptions of the Relative Harm of Cigarettes and E-Cigarettes among Us Youth.” American Journal of Preventive Medicine 47, no. 2 (2014): S53-S60. https://www.ajpmonline.org/article/S0749-3797(14)00183-4/fulltext

[10] 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

[11] Centers for Disease Control and Prevention, Behavioral Risk Factor Surveillance System. https://www.cdc.gov/brfss/brfssprevalence/index.html

[12] Ibid.