Testimony from:
Chelsea Boyd, Research Fellow, Integrated Harm Reduction Policy, R Street Institute

In OPPOSITION to MN SF 2123, “A bill for an act relating to health; prohibiting the sale or offer for sale of flavored products; authorizing penalties; amending Minnesota Statutes 2022, sections 461.12, subdivision 2; 461.19; proposing coding for new law in Minnesota Statutes, chapter 461.”

February 28, 2023

About Us
The R Street Institute is a nonprofit, nonpartisan public policy research organization based out of Washington, D.C. We strive to promote free markets and effective government policies in many areas, including harm reduction.

Over the past several decades, public health has made great strides in decreasing smoking initiation and promoting smoking cessation. However, no cessation or prevention program is 100 percent successful at the population level, and many people are left behind. To that end, we believe that harm reduction approaches can positively affect the health and welfare of people who use addictive substances, including nicotine.

The R Street Institute’s ultimate goal is to bring harm reduction approaches into equal standing as a third pillar of tobacco control alongside demand reduction (increased cessation and prevention measures) and supply reduction (shifting to economies that do not rely on tobacco production). From a public health perspective, it is important to incentivize people to use less harmful products. Ensuring the availability of a wide variety of products that can meet the needs of people who smoke will encourage people to choose alternative, reduced-risk products.

It is for this reason that I write to you out of concern over bill SF 2123, which seeks to prohibit the sale of flavored vapor products, which would stymie consumer ability to avoid combustible cigarettes.

E-Cigarettes Are a Harm Reduction and Smoking Cessation Tool
The Royal College of Physicians; the National Academies of Science, Engineering and Medicine; and the U.S. Food and Drug Administration (FDA) have recognized that nicotine products exist on a continuum of risk, with e-cigarettes being at the lower end near traditional nicotine replacement therapies and combustible cigarettes being at the highest end of the risk spectrum.[1] Importantly, in its comprehensive report, Public Health England stated that e-cigarettes are unlikely to exceed 5 percent of the risk associated with combustible cigarettes.[2] These products are recognized as presenting a reduced risk because they do not function via the combustion process that produces the 7,000 chemicals found in combustible cigarette smoke—some of which are highly carcinogenic.[3] In fact, former U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb made reduced-risk products like e-cigarettes central to the FDA’s roadmap:

             While it’s the addiction to nicotine that keeps people smoking, it’s primarily the combustion, which releases thousands of              harmful constituents into the body at dangerous levels that kills people. This fact represents both the biggest challenge to              curtailing cigarette addiction ‒ and also holds the seeds of an opportunity that’s a central construct for our actions.              E-cigarettes may present an important opportunity for adult smokers to transition off combustible tobacco products.[4]

Indeed, e-cigarettes have quickly become the number one quit tool in many parts of the world, allowing an untold number of smokers to quit cigarettes. Public health modeling suggests that e-cigarettes are contributing to more rapid declines in smoking rates than were seen in previous years.[5] In the United States and United Kingdom, e-cigarettes have outpaced traditional quit methods (varenicline, nicotine replacement therapies and counseling) and demonstrate a higher degree of success.[6] Furthermore, a Cochran Review—which is considered a gold standard for evaluating medical evidence—concluded with high certainty that using nicotine-containing e-cigarettes increases the rate of successfully quitting smoking compared to traditional nicotine replacement therapy.[7] The review also concluded with moderate certainty that there were higher quit rates among people who used nicotine-containing e-cigarettes than there were among those who used non-nicotine-containing e-cigarettes.[8] Additionally, the review concluded that the rates of adverse events for both scenarios were similar between groups, indicating that nicotine-containing e-cigarette use was not causing more adverse events than nicotine replacement therapy or non-nicotine-containing e-cigarettes.[9]

Flavors Help Smokers Transition Away from Combustible Cigarettes
The availability of non-tobacco flavors also assists smokers with the transition from combustible cigarettes. The International Journal of Environmental Research and Public Health reports that limitations in flavor choices negatively impact user experience. About 40 percent of e-cigarette-using former and current adult smokers predict that removing their ability to choose flavors would make them less likely to remain abstinent or attempt to quit.[10]

Moreover, it has been demonstrated that e-cigarette users who use non-tobacco flavors, including menthol and non-menthol (fruit, sweet, dessert) flavors are more likely to completely switch from combustible cigarettes than those who choose tobacco flavors.[11] Additionally, a study from 2020 showed that 86.6 percent of participants who were vaping to reduce smoking chose candy flavors, and 86.2 percent vaped fruit flavors.[12] Flavored e-liquids are yet another way that e-cigarettes can help smokers disassociate combustible cigarettes—and their characteristic flavor—from their pleasurable effects.

Although banning flavors is based on good intentions, there are some potential unintended consequences associated with these policies. First, they may lead to increased combustible cigarette use. When asked about how a flavor ban would change their behavior, many e-cigarette users indicate that they would be likely to resume (or fail to quit) using combustible cigarettes, and others say that they would seek out products in uncontrolled markets.[13] In one longitudinal study, 9.7 percent of adult e-cigarette users surveyed indicated that they would go back to smoking combustible cigarettes.[14] Adults may not be the only people who would substitute combustible cigarettes after losing access to e-cigarettes; an evaluation of self-reported youth smoking after San Francisco banned all flavored tobacco products suggests that the ban increased the odds of smoking among high school students.[15] There is also some evidence that banning flavored products will result in an increase in illicit sales; in one longitudinal study, 50 percent of participants said they would “find a way” to access their preferred product, and some even said they would add their own flavoring agents.[16]

As you consider signing SF 2123 into law, we strongly urge you to examine the utility of flavored vapor products as harm reduction tools that complement traditional prevention measures. It is imperative that a range of e-cigarettes and vapor products remain accessible at a level that encourages, rather than discourages, smokers to choose these less harmful products. Doing so will reduce the incidence and cost of tobacco-related diseases.

Respectfully submitted,

Chelsea Boyd, MS
Integrated Harm Reduction Research Fellow
R Street Institute
[email protected]

[1] Tobacco Advisory Group, “Nicotine without smoke: Tobacco harm reduction,” Royal College of Physicians, April 28, 2016.https://www.rcplondon.ac.uk/projects/outputs/nicotine-without-smoke-tobacco-harm-reduction-0; “Public Health Consequences of E-Cigarettes,” The National Academies of Science, Engineering and Medicine, January 2018. http://nationalacademies.org/hmd/reports/2018/public-health-consequences-of-e-cigarettes.aspx; U.S. Food & Drug Administration, “FDA announces comprehensive regulatory plan to shift trajectory of tobacco-related disease, death,” Department of Health and Human Services, July 27, 2017. https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm568923.htm.

[2] Tobacco Advisory Group,p. 87.https://www.rcplondon.ac.uk/projects/outputs/nicotine-without-smoke-tobacco-harm-reduction-0.

[3] National Cancer Institute, “Harms of Cigarette Smoking and Health Benefits of Quitting,” National Institutes of Health, Dec. 19, 2017. https://www.cancer.gov/about-cancer/causes-prevention/risk/tobacco/cessation-fact-sheet.

[4] U.S. Food & Drug Administration, “Statement from FDA Commissioner Scott Gottlieb, M.D., on new steps to address epidemic of youth e-cigarette use,” Department of Health and Human Services, Sept. 11, 2018. https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm620185.htm.

[5] David T. Levy et al., “Examining the relationship of vaping to smoking initiation among US youth and young adults: a reality check,” Tobacco Control 28:6 (November 2019), pp. 629-635. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6860409; Shu-Hong Zhu et al., “E-cigarette use and associated changes in population smoking cessation: evidence from US current population surveys,” BMJ 358 (2017). https://www.bmj.com/content/358/bmj.j3262.

[6] Health & Wellbeing Directorate, “E-cigarettes: a new foundation for evidence-based policy and practice,” Public Health England, August 2015. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/454517/Ecigarettes_a_firm_foundation_for_evidence_based_policy_and_practice.pdf;

Shu-Hong Zhu et al. https://www.bmj.com/content/358/bmj.j3262.

[7] Jamie Hartmann-Boyce et al., “Electronic cigarettes for smoking cessation,” Cochrane Database of Systematic Reviews 11:CD010216 (Nov. 17. 2022). https://www.cochranelibrary.com/cdsr/doi/10.1002/14651858.CD010216.pub7/full.

[8] Ibid.

[9] Ibid.

[10] Konstantinos E. Farsalinos et al., “Impact of Flavour Variability on Electronic Cigarette Use Experience: An Internet Survey,” International Journal of Environmental Research and Public Health 10:12 (December 2013), pp. 7272-7282. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3881166/.

[11] Christopher Russell et al., “Changing patterns of first e-cigarette flavor used and current flavors used by 20,836 adult frequent e-cigarette users in the USA,” Harm Reduction Journal 15:33 (June 28, 2018). https://harmreductionjournal.biomedcentral.com/articles/10.1186/s12954-018-0238-6#Abs1.

[12] Shannon Gravely et al., “The Association of E-cigarette Flavors With Satisfaction, Enjoyment, and Trying to Quit or Stay Abstinent From Smoking Among Regular Adult Vapers From Canada and the United States: Findings From the 2018 ITC Four Country Smoking and Vaping Survey,” Nicotine & Tobacco Research 20:10 (October 2020), pp. 1831-1841. https://academic.oup.com/ntr/article/22/10/1831/5843872?login=true.

[13] Ping Du et al., “Changes in Flavor Preference in a Cohort of Long-Term Electronic Cigarette Users,” Annals of American Thoracic Society 17:5 (May 2020), pp. 573-581.https://pubmed.ncbi.nlm.nih.gov/31978316.

[14] Ibid.

[15] Abigail S. Friedman, “A Difference-in-Differences Analysis of Youth Smoking and a Ban on Sales of Flavored Tobacco Products in San Francisco, California,” JAMA Pediatrics 175:8 (May 24, 2021), pp. 863-865. https://jamanetwork.com/journals/jamapediatrics/fullarticle/2780248.

[16] Roberta Freitas-Lemos et al., “The Illegal Experimental Tobacco Marketplace I: Effects of Vaping Product Bans,” Nicotine & Tobacco Research 23:10 (October 2021), pp. 1744-1753. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8403238; Ping Du et al. https://pubmed.ncbi.nlm.nih.gov/31978316.