Over-regulation Creates More Problems Than It Solves: Bans in New York
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The smoking rate in New York dropped from around 23 percent in 2000 to approximately 14.2 percent in 2020—a decline of about 8.8 percent. Much as other states have, New York implemented a range of tobacco control measures including substantial increases in cigarette taxes and the establishment of smoke-free public spaces. The New York Tobacco Control Program has been instrumental in these efforts, providing resources for cessation and promoting public awareness about the dangers of smoking.
Unfortunately, reduced smoking isn’t the only outcome of stringent tobacco control measures in New York: The state is also seeing a rise in the illicit trade of cigarettes. More than 54 percent of products used in the state are smuggled in (the highest in the United States), with nearly 232 million smuggled packs per year. This results in a net loss of over $1 billion in revenue for the state. One of the primary drivers of New York’s illicit tobacco trade is the state’s staggeringly high excise tax on cigarettes—also the highest in the nation. As of 2023, the cigarette tax in New York was $5.35 per pack, leading to retail prices exceeding $13 per pack when combined with local taxes. The availability of cheaper cigarettes from neighboring states, such as Pennsylvania and New Jersey, further complicates the issue. Smokers often purchase cigarettes in these states and then bring them back to New York.
Criminal organizations often exploit the high demand for cheap cigarettes by smuggling them into New York from other regions, too. Reports indicate these organizations are increasingly sophisticated, utilizing established smuggling routes and networks to distribute illicit tobacco products. The involvement of organized crime complicates enforcement efforts and poses significant public safety risks, as these groups may engage in other illegal activities alongside tobacco smuggling.
New York also bans flavors of non-combustible nicotine products—as do many jurisdictions across the country—in an effort to reduce youth access to these products. Public reactions to the state’s flavor ban have been mixed: One study found that while some individuals supported the ban as a necessary public health measure, others expressed dissatisfaction—particularly those who relied on flavored e-cigarettes. Initial data following the ban indicated a decline in sales of flavored e-cigarettes in New York; however, non-flavored tobacco product sales rose concurrently. This shift suggests that although the ban may have reduced the availability of flavored products, it also led some consumers to switch to non-flavored alternatives. There is concern that this transition may not necessarily equate to a reduction in overall tobacco use, as some users may switch to other flavored tobacco products that remain legal, such as menthol cigarettes—which is, in effect, product substitution.
This past summer, the New York Senate began to take additional measures to expand the flavor ban to other non-combustible and non-tobacco nicotine products, specifically nicotine pouches. A primary driver of such legislation is to protect youth by reducing the potential of attracting underaged individuals to a flavor or its packaging. The reality, however, is that the flavor of any product is an important consideration for adults, and the potential risks of allowing flavors must be weighed against the potential benefits. Since 2019, the United States has banned the sale of any nicotine product to those under the age of 21. This means that youth should no longer have legal access to products designed for adult consumption. Additionally, according to the 2023 National Youth Tobacco Use survey, just over 1 percent of high school-aged students reported having tried a nicotine pouch in the previous 30 days.
The focus on solving the health burdens associated with smoking in New York leans heavily on typical tobacco control policies, which often treat all tobacco and nicotine products equally. As a result, the state is making it more difficult for adult smokers to access reduced-risk products. With nearly 1.7 million New Yorkers continuing to smoke and nearly 28,000 dying annually from smoking-related diseases each year, a different approach is needed. To accelerate the decline of smoking, state legislatures should provide access to products that have been shown to help quell smoking in adults, such as reduced-risk products of varied formats and flavors, to encourage those who smoke to switch. Continuing to solely rely on archaic tobacco control measures, particularly when there are new tools in the smoking-cessation toolbox, will only delay efforts to eliminate smoking in the state. The science is clear: Varied approaches are necessary to help those who smoke to quit, and reduced-risk products are a key tool that help adults quit smoking. Continuing to restrict access to these products for adults will unnecessarily lead to more death and disease.