Reversing the Youth Tobacco Epidemic Act of 2019
Floor Speech
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Mr. SMITH of Nebraska. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, we know that smoking is bad for us. We all agree we don't want kids using tobacco or vaping, which is why we came together on a bipartisan basis last year to make it hard for kids to access these products by raising the legal age to buy them to 21.
I cosponsored last year's bill to raise the age. Mr. Suozzi was also a cosponsor of that bill, and I am glad we got that done.
I am going to vote ``no'' today because we don't have a good answer.
I will give the sponsor of this proposal credit. They endeavored to tax liquid nicotine at a per-unit level comparable to the tax-to- nicotine ratio of cigarettes, and they appear to have come very close to that goal.
However, tobacco isn't taxed because it contains nicotine. It is taxed because we understand the serious health consequences which come with smoking or chewing tobacco itself, and those health consequences create vast costs for programs like Medicare and Medicaid.
If we are going to consider taxing vaped nicotine, we first need to address the underlying issues, such as the value of vaping as a smoking-cessation tool, the relative safety of vaped nicotine versus cigarette smoking and what really caused the spate of vaping-related illnesses we have seen in the past year. I will start with the easiest one first.
According to the CDC, the vaping-related illnesses can be tied back to vitamin E acetate, an oil used in THC vaping, not to the ingredients used to vape nicotine. Taxing nicotine does nothing to address vitamin E acetate.
Second, how safe is vaping compared to smoking, and what is its value as a smoking-cessation tool?
The British Journal of Family Medicine found e-cigarettes are 95 percent safer than traditional smoking, based on the fact most harmful chemicals from smoking are not present, and those which are present pose a limited amount of danger.
Another study from Britain's NHS found e-cigarettes were nearly twice as likely as nicotine gum or lozenges to help quit long term.
At the same time, a study from the nonpartisan National Bureau of Economic Research found the State of Minnesota's efforts to bring parity to the taxation of cigarettes and e-cigarettes actually flatlined the State's smoking-cessation trend, while other States which didn't raise taxes continued to see smoking decrease.
Let me say that again. The State of Minnesota's efforts to bring parity to the taxation of cigarettes and e-cigarettes actually flatlined the State's smoking-cessation trend, while other States which did not raise taxes continued to see smoking decrease.
At the same time, JCT's economists tell us increasing the cost of e- cigarettes with taxes will cause some people to choose cigarettes over e-cigarettes. That is not a choice we should be encouraging people to make.
These are all factors which we could have considered in a bipartisan fashion before the Ways and Means Committee marked up this bill had we had any hearings whatsoever on vaping or this proposal itself.
Madam Speaker, we should be open to a conversation about the best way to ensure the tax code treats tobacco and e-cigarettes appropriately. Rushing this bill through is not the solution.
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Mr. SMITH of Nebraska. Madam Speaker, I yield 4 minutes to the gentleman from Georgia (Mr. Ferguson).
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Mr. SMITH of Nebraska. Madam Speaker, I yield the gentleman from Georgia an additional 2 minutes.
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Mr. SMITH of Nebraska. Madam Speaker, I yield 2 minutes to the gentlewoman from West Virginia (Mrs. Miller).
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Mr. SMITH of Nebraska. Madam Speaker, I yield 4 minutes to the gentleman from Kansas (Mr. Estes).
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Mr. SMITH of Nebraska. Madam Speaker, I include in the Record 10 letters in opposition to H.R. 2339.
The first letter is from a group of letter-writers that would include the Drug Policy Alliance, the Law Enforcement Action Partnership, the National Action Network, the National Association of Criminal Defense Lawyers, the National Association of Social Workers, the Center for Popular Democracy, and the American Civil Liberties Union.
Other letters come from the National Taxpayers Union, Freedom Works, R Street Institute, Citizens Against Government Waste, and the National Association of Convenience Stores. Monday, February 24, 2020. Re Coalition Concerns with Blanket Prohibition on Menthol and Other Flavored Tobacco within H.R. 2339, Reversing the Youth Tobacco Epidemic Act. Hon. Frank Pallone, Chairman, House Committee on Energy and Commerce, Washington, DC.
The undersigned civil rights and civil liberties organizations write to express concerns with a broad prohibition on menthol and other flavored tobacco products within H.R. 2339, the Reversing the Youth Tobacco Epidemic Act of 2019. While this legislation is a well-intended effort to address health issues associated with tobacco use among youth, we have concerns that a blanket prohibition on menthol and other flavored tobacco products, which will apply to adults, will (1) disproportionately impact people and communities of color; (2) trigger criminal penalties, prioritizing criminalization over public health and harm reduction; and (3) instigate unconstitutional policing and other negative interactions with local law enforcement. I. H.R. 2339 Disproportionately Impacts People and Communities of Color
Of adults, approximately 80 percent of Blacks and 35 percent of Latinx who choose to smoke prefer menthol cigarettes. Thus, any ban on menthol cigarettes will disproportionately affect people of color. While H.R. 2339 and similar legislation are often motivated by the desire to decrease and eliminate smoking among certain populations, Blacks and other people of color should not disproportionately bear the brunt of enforcement of such prohibitions, which a menthol ban would ensure.
Similarly, enforcement of a ban on flavored cigars will also disproportionally impact people of color given cigar preferences. Black adults are 60% of cigarillo and non- premium cigar smokers, with these products often flavored. Additionally, at Committee markup, H.R. 2339 was amended to exempt certain traditional, expensive cigars from a prohibition of online tobacco sales. There is no justification for differentiating a La Palina from a Black and Mild. Making this distinction undermines the public health arguments made for this bill and suggests that some tobacco preferences, within certain communities, will be prioritized and protected over others. II. H.R. 2339 Increases Criminal Penalties Over Public Health
H.R. 2339 prohibits menthol and other flavored tobacco products under the Food, Drug, and Cosmetic Act (FD&C Act). This prohibition criminalizes the manufacturing, importing, distributing, or selling of menthol and other flavored tobacco products under the FD&C Act, imposing up to three years of imprisonment. Violating a menthol and flavored tobacco ban would implicate other federal criminal penalties as well. For example, the Federal Cigarette Contraband Trafficking Act would be implicated, allowing up to five years of imprisonment.
With a criminal legal system that incarcerates Blacks at nearly six times the rate of white Americans and a prison population that is 67 percent Black and Latinx, any prohibition on menthol and flavored tobacco products promises continued overcriminalization and mass incarceration of people of color. A ban on menthol and flavored tobacco products could reintroduce many of the harms imposed by the failed war on drugs as lawmakers work to legalize cannabis and take a public health approach to opioids. A bill criminalizing tobacco is contrary to those efforts. Righting the wrongs of earlier failed drug policy requires consideration of the unintended consequences of well- intentioned policies, especially on the most vulnerable communities. It also requires us to remember that harm reduction, including education and counseling, are what work to reduce usage and harm in our society, not prohibition. III. H.R. 2339 Encourages Harmful Police Practices
Recent history shows us that drug prohibitions and bans increase negative interactions between law enforcement and people of color. The New York Police Department's (NYPD) stop and frisk program resulted in nearly 700,000 stops in 2011, with drugs serving as the alleged pretext for most of those stops. Ninety percent of those stops were of Black and Latinx people. We are concerned that law enforcement's attempts to enforce a menthol and flavored tobacco ban will undoubtedly lead to fines, arrests, and eventual incarceration for those who continue to use and sell menthol and flavored tobacco products. While the legislation was amended at Committee to try to minimize law enforcement practices here, it only applies in the context of federal enforcement of the FD&C Act; it does not govern local enforcement around any state and city prohibition policies that will follow.
The death of Eric Garner in 2014 generated national attention not only for the brutality he experienced at the hands of NYPD police, but for the reason that led to the encounter with law enforcement. Mr. Garner died from an illegal chokehold having been stopped by police for selling single cigarettes in violation of state law. Gwendolyn Carr, Eric Garner's mother, cautions: ``When you ban a product sold mostly in Black communities, you must consider the reality of what will happen to that very same overrepresented community in the criminal justice system.'' With a federal prohibition on menthol and flavored tobacco products, states will develop their own prohibition and enforcement policies that could result in harmful police practices like that witnessed with Mr. Garner.
Based on our concerns, we urge you to not impose a blanket ban on menthol and related tobacco products. A prohibition on all menthol and flavored tobacco products will not achieve a public heath goal of reducing smoking among Black people, young people, or others. We hope we can work together to avoid repetitions of policies that are intended to protect youth and communities of color, but instead only further engrain systemic criminalization and racism. Sincerely,
American Civil Liberties Union, Drug Policy Alliance, Law Enforcement Action Partnership, National Action Network, National Association of Criminal Defense Lawyers, National Association of Social Workers, The Center for Popular Democracy. ____ National Taxpayers Union, February 25, 2020.
National Taxpayers Union urges all Representatives to vote ``NO'' on H.R. 2339, the ``Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act'' of 2020. This disastrous legislation would significantly raise taxes and limit the ability for cigarette smokers to transition to less harmful vapor and e-cigarette products.
As written, H.R. 2339 contains one of the largest tax increases considered by the 116th Congress to date. This legislation would levy a new excise tax on nicotine contained in vaping products to match the rate of the federal cigarette excise tax and could raise nearly $10 billion, according to CBO. It's a significant tax hike that will severely harm consumers and small business owners. While there is likely to be harm to the economic health of the country, there would also be damage to the health of adults transitioning away from deadly cigarettes. According to a study published by the National Bureau of Economic Research, taxing vapor products at the same rate as traditional cigarettes would deter approximately 2.75 million Americans from kicking their habit. In other words, tax policy alone could make it less likely that millions of Americans make choices that would improve their health.
It is particularly concerning that this legislation prohibits all flavors of tobacco products, including menthol. In their attempts to quit, adult tobacco smokers typically start with tobacco-flavored e-liquid, but research indicates many end up switching to other flavors that this legislation would prohibit. Cracking down on legal-age buyers of flavored e-cigarettes will limit access to less harmful alternatives that could potentially save hundreds of thousands of lives each year. Blanket prohibitions are seldom successful and often lead consumers to untaxed and unregulated black markets to access products.
These devastating provisions completely disregard the benefits vapor products have as an important cigarette cessation tool. Vapor products still allow users to consume nicotine, but avoid the traditional combustion of cigarettes, which contain toxins and other dangerous chemicals. Some government studies have found that e-cigarettes are 95 percent safer than traditional tobacco products and can be as much as twice as effective as gum or patches to help users quit. Smoking is a high-risk activity and providing smokers with a way to consume nicotine in a safer way is a large public health benefit, increasing life expectancy and reducing mortality.
Roll call votes on H.R. 2339 will be heavily-weighted in NTU's annual Rating of Congress and a ``NO'' vote will be considered the pro-taxpayer position. ____ FreedomWorks, February 26, 2020. Key Vote No on the Quit or Die Act, H.R. 2339
On behalf of FreedomWorks' activist community, I urge you to contact your representative and ask him or her to vote NO on the ``Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act,'' H.R. 2339. This bill is nothing short of an assault on the vaping industry, which provides smokers with a method of harm reduction that is 95 percent safer than traditional, combustible cigarettes. The message House Democrats are sending with H.R. 2339 is that Americans who want to kick the habit through vaping should either ``quit or die.''
H.R. 2339 would outright ban online sales of flavored vaping products, and ban the flavors themselves. The bill would also require graphic health warnings on tobacco packaging. This is nanny state governance at its worst.
Despite the bill's wildly misleading short title, it will not, in fact, do anything to combat youth usage of tobacco products. What it will do is make it more difficult for adult smokers to quit on their own terms. This bill prohibits the use of any and all characterizing flavors of tobacco products, including menthol. It's important to note this is not limited to e-cigarettes. Traditional menthol cigarettes would become illegal if this bill were made law.
The sponsors of H.R. 2339, Reps. Frank Pallone (D-N.J.) and Donna Shalala (D-Fla.), have put a stark choice before smokers in the United States: quit or die. Studies have shown that e-cigarettes are both 95 percent less harmful than traditional cigarettes and a more effective means of quitting. H.R. 2339 takes that option entirely off the table. Under this legislation, if smokers cannot quit cold turkey, they are left to suffer the crippling medical consequences on their own.
This bill also presents a variety of First Amendment concerns. It would require tobacco companies to provide graphic health warnings on their packaging. This is compelled commercial speech by the government, something that's been ruled unconstitutional a number of times. The late Supreme Court Justice Lewis Powell set forth a test for government regulation of commercial speech. The two prongs were that in order to be regulated, the existing labeling must actively be misleading and there must be a substantial government interest involved. The Pallone-Shalala bill fails both tests.
Furthermore, this bill greatly increases the Food and Drug Administration's (FDA) authority to regulate this space. The FDA would have the ability to hand down even more stringent regulations on the sale of existing products and collect fees or taxes on them. This is an unacceptable growth of an unelected bureaucratic agency.
Amusingly, this package contains a provision that would require a study to be conducted on the effects of e- cigarettes. This is a clear admission by the drafters of this legislation that they not only ignored the medical research surrounding vaping but that they also have no intention of doing so before they wholesale ban an entire category of products.
H.R. 2339 also includes the text of H.R. 4742. This aspect of the bill would impose a new excise tax on nicotine used in vaping, at a rate of $50.33 per 1,810 milligrams or at a proportional rate. The Congressional Budget Office projects that H.R. 4742 would increase tax revenues by nearly $10 billion over ten years. Obviously, this bill is aimed at deterring people from vaping by increasing the costs, which will be passed along to the consumer at the point of sale.
This kind of excise tax typically impacts lower-income individuals. The National Center for Biotechnological Information notes, ``In 2013, the prevalence of smoking among US adults living at or below the US Census poverty threshold was 80% greater than that of those living above the poverty line (33.8% compared to 18.7%). This elevated prevalence is in part due to the reality that compared to more advantaged smokers, over time disadvantaged smokers have a lesser likelihood of quitting.''
We find it peculiar that House Democrats, who have so frequently relied on class warfare rhetoric to push a socialist agenda, have sought to protect the state and local tax (SALT) deduction--which overwhelmingly benefits higher- income earners in high-tax states like California, New Jersey, and New York--but are so willing to hit lower-income individuals with such a regressive tax. We find the hypocrisy palpable.
Because H.R. 2339 creates new prohibitions on certain activities--including banning menthol and other flavors--it opens up the possibility of criminal penalties under the Food, Drug, and Cosmetic Act (21 U.S.C. 333) and the Federal Cigarette Contraband Trafficking Act (18 U.S.C. 2344). In short, individuals who participate in this behavior could be exposed to fines and prison time.
FreedomWorks will count the vote on H.R. 2339 on our 2020 Congressional Scorecard and reserves the right to score any related votes. The scorecard is used to determine eligibility for the FreedomFighter Award, which recognizes Members of the House and Senate who consistently vote to support economic freedom and individual liberty. Sincerely, Adam Brandon, President, FreedomWorks. ____ R Street, Washington, DC, February 25, 2020.
Dear Speaker Pelosi, Minority Leader McCarthy and Members of the House of Representatives: The R Street Institute--a nonprofit, nonpartisan public policy research organization focused on pragmatic solutions to policy challenges--has a number of concerns with H.R. 2339, the ``Reversing the Youth Tobacco Epidemic Act of 2019.'' We recognize that preventing non-smoking young people from establishing both e-cigarette and combustible cigarette use is vital to the future health of the population. However, it is important to recognize that smoking is the leading cause of preventable death in the United States, and we must continually evaluate the available strategies for decreasing tobacco-related morbidity and mortality. E-cigarettes provide such a strategy.
Undoubtedly, the youth use trend is cause for concern and continued investigation. However, this cannot be the only measure of the effect of e-cigarettes on population health. Based on the body of research as a whole, we urge the committee to consider pursuing policies that reflect the short- and long-term population health impact of e-cigarettes relative to the known harms of combustible cigarettes.
E-cigarettes are a harm reduction and smoking cessation tool
The best available science indicates e-cigarettes are not likely to exceed 5 percent of the harm associated with combustible cigarettes, a conclusion supported by both Public Health England and recently the National Academies of Sciences, Engineering and Medicine. Also, like traditional nicotine replacement therapies, e-cigarettes do not produce environmental tobacco smoke that harms bystanders. It is estimated that e-cigarettes have the potential to save up to 6 million lives by 2100 if only 10 percent of current smokers switch to e-cigarettes in the next 10 years.
Many experts recognize that e-cigarettes present a reduced risk because they do not employ the traditional cigarette combustion process that releases around 7,000 chemicals--some of which are highly carcinogenic. For this reason, one such expert, former FDA commissioner Scott Gottlieb, has 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.
Although there are a number of pharmaceutical products that can help smokers quit, it is important to remember that it is not only nicotine dependence that makes quitting combustible cigarettes difficult. For some, smoking offers stress relief, comradery or other psycho-social pleasure, and some even consider it a component of their identity. This often makes the physical act of smoking just as difficult to quit as the nicotine. Unlike the FDA-approved methods of smoking cessation, e-cigarettes do not force a smoker to forgo the secondary pleasure they get from the act of smoking while they are adjusting to the physiological effects of decreased nicotine.
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 has suggested that e-cigarettes are contributing to more rapid declines in smoking rates than were seen in previous years. In the United States and the United Kingdom e- cigarettes have outpaced traditional quit methods (varenicline, nicotine replacement therapies and counseling) and demonstrate a higher degree of success. Furthermore, in a randomized trial, smokers who used e-cigarettes as a cessation device achieved sustained abstinence at roughly twice the rate of smokers who used nicotine replacement therapy. Flavors help smokers transition away from combustible cigarettes
The availability of non-tobacco flavors also assists smokers with the transition away 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 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. In fact, data suggests that current smokers are partial to the flavor of traditional tobacco, while fruit and sweet flavors are preferred by former smokers, indicating a correlation between flavors and sustained abstinence from combustible cigarettes.
Moreover, it has recently 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. Flavored e-liquids are yet another way that e-cigarettes can help smokers disassociate combustible cigarettes--and the characteristic flavor--from their pleasurable effects.
Although many organizations and leaders suggest flavors attract young people to e-cigarettes, the 2019 National Youth Tobacco Survey casts doubt on that assertion. Among middle school and high school students, the most commonly endorsed reason for using e-cigarettes was ``I was curious about them.'' Overall, 53 percent of students surveyed indicated curiosity as a reason they use e-cigarettes. The second most common reason for use was if a student's friend or family member used e-cigarettes. With just 22 percent of students endorsing availability of flavors as a reason for vaping, it is clear that social factors, not flavors, are the driving force behind youth e-cigarette use. R Street applauds raising the age of purchase of all tobacco products to 21
Of course, smokers are not the only population impacted by e-cigarettes, and addressing youth use is important. Our organization, the R Street Institute, endorsed raising the minimum age of purchase for all tobacco products to 21, which was signed into law Dec. 20, 2019. This change will help prevent youth access in high school by limiting opportunities for younger students to buy from peers who, prior to the federal minimum-age-to-purchase increase, obtained the products legally. In combination with more stringent point- of-sale age verification and meaningful penalties for merchants who violate minimum-age-to-purchase laws, this change will significantly limit youth access.
The impact of nationwide 21-to-purchase legislation is yet to be evaluated; however, evidence from areas that raised the minimum age to purchase prior to the federal legislation suggests that this change will be highly effective at decreasing youth tobacco use. Following implementation of a 21-to-purchase law in Needham, Massachusetts, there was an unprecedented 47 percent reduction (from 13 to 7 percent) in past 30-day smoking rates among high schoolers over four years (2008-2012). R Street does not support banning non-face-to-face sales of e- cigarettes
It is imperative that the availability of reduced-risk alternatives remains in place for people who use e-cigarettes as a cessation tool. According to the 2016 Surgeon General's Report, in 2014, 20 percent of all e-cigarette sales occurred online. It is estimated that in 2018, 32 percent of all e- cigarette sales occurred online. As more proposals arise to limit what kinds of brick and mortar establishments are able to sell e-cigarettes or other reduced-risk products--all while protecting combustible sales--online sales may be the only point of access for people who, for many reasons, cannot reach specialty stores. It should not be a surprise to the committee that people who live with disabilities, are economically disadvantaged or live in rural areas are overrepresented in the smoking population. These particular factors represent true barriers to face-to-face access to specialty products. Online sales and delivery may be the only way that smokers have access to safer products.
Furthermore, there is a misperception that online sales of e-cigarettes are more vulnerable to underage access. Legal retailers that sell their products online have strict FDA- mandated age verification systems that are successful in preventing underage access to their products. Unverified underage sales largely occur on eBay or other websites where age verification is not vital. Banning non-face-to-face sales will not stop illegitimate online sales to underage persons from occurring, as these sales are already illegal. the fda's role in protecting public health
Finally, it is important to recognize that the FDA has developed a regulatory pathway to evaluate the safety and public health impact of all new tobacco products, including considerations of flavors. This is a process that has been carefully designed over several years to ensure new tobacco products, like e-cigarettes, will not have a negative impact on the health of the population as a whole. Given that manufacturers must file their Premarket Tobacco Applications for all deemed tobacco products, which includes virtually all e-cigarettes, by May 12, 2020 or risk removal from the market, it makes sense to delay enacting any federal bans. Allowing the safety and regulatory experts at the FDA to lead the way in authorizing the sale of these products is the most appropriate way forward, something acknowledged by Sec. 103(d.2) of this bill.
Policies that treat e-cigarettes the same as combustible cigarettes encourage current smokers to continue doing enormous harm to their health by discouraging a switch from combustible products. Conversely, policies that reflect the lesser harm of e-cigarettes can significantly reduce the enormous burden of disease that combustible cigarettes impose on society.
One thing is certain: We are all striving to improve and protect the nation's health. To do so, we must recognize the potential for e-cigarettes to mitigate risks associated with combustible cigarettes if we wish to encourage a healthful populace. We encourage you to consider policies that reflect the reduced risk of e-cigarettes compared to combustible cigarettes as we work towards creating a healthier population.
Thank you for your time and consideration. Respectfully submitted, Carrie Wade, Ph.D., M.P.H.,
Director of Harm Reduction Policy, R Street Institute. Chelsea Boyd, M.S.,
Research Associate in Harm Reduction Policy, R Street Institute. ____ February 14, 2020. House of Representatives, Washington, DC.
Dear Representative: On November 19, 2019, H.R. 2339, the Reversing the Youth Tobacco Epidemic Act of 2019, was reported out of the Energy and Commerce Committee. It is likely you will vote on this legislation before the end of February.
The Council for Citizens Against Government Waste (CCAGW) understands the concerns Congress has with youth use of tobacco products, particularly electronic nicotine delivery systems (ENDS) and vaping, but legislation was passed in December 2019 that raised the age from 18 to 21 for the legal use of any tobacco product. It would seem obvious that Congress should allow that new law to take hold before H.R. 2339, a far more drastic measure, is even considered. If this bill should become law, it would create a black market that will cause great harm to our citizens. On behalf of the more than 1 million members and supporters of CCAGW, I ask that you oppose H.R. 2339.
The legislation would make it illegal to sell any flavored ENDS product and ban flavors in other tobacco products, including menthol, mint, and spice flavors found in combustible cigarettes and non-combustible products like flavored cigars and chewing tobacco. Only natural tobacco flavor would be allowed.
Adults use ENDS and other non-combustible harm-reduction tobacco products to quit smoking because they enjoy the sweet and fruity flavors, finding them essential in moving away from smoking. Banning menthol and other flavors, like spices and herbs found in combustible cigarettes and other products like chewing tobacco, will encourage many current users to find other sources of these flavors. Menthol crystals can easily be bought and enterprising street vendors will be eager to sell a variety of flavorings for all tobacco users.
Much of the impetus behind H.R. 2339 was based on reports that youth use of e-cigarettes had climbed significantly. The 2019 National Youth Tobacco Survey data showed that 64.8 percent of youth had never tried an e-cigarette and 6.7 percent had used an e-cigarette in their entire life for more than 100 days. The largest percent of youth purchased their e-cigarette from a friend, not a store. Certainly, 6.7 percent is a number to be concerned about but whether that should be considered an epidemic and warrant passing such radical legislation that will hurt adults who are using harm reduction tobacco products to quit smoking is questionable.
For example, according to 2017 Centers for Disease Control (CDC) statistics, it was found that among high school students, during the past 30 days, 30 percent drank some amount of alcohol; 14 percent binge drank; 6 percent drove after drinking alcohol; and, 17 percent rode with a driver who had been drinking alcohol. Yet despite these numbers, Congress is not calling for a ban on alcohol. That was tried before with disastrous results.
In late summer and into the early fall, there were reports of severe illnesses and death due to a national outbreak of ``e-cigarette, or vaping, product use-associated lung injury'' or EVALI. The CDC admits that as of February 11, 2020 the data shows tetrahydrocannabinol (THC)-containing e- cigarette, or vaping products, which were obtained from ``informal sources like friends, family, or in-person or online dealers, are linked to most EVALI cases and play a major role in the outbreak'' and that ``Vitamin E acetate is strongly linked to the EVALI outbreak.''
In other words, it was the illicit market that caused the problem, not the legitimate ENDS market that produces thousands of jobs and helps millions of ex-smokers stay away from combustible cigarettes that Congress and the Food and Drug Administration are so keen to destroy.
Fortunately, the EVALI cases have dropped significantly, so Congress and health officials should take heed. Tobacco is a legal product in the U.S. and even if Congress could ban it, there should be little doubt that China would step in and flood an illicit market as it is the leading producer of tobacco in the world. The same result will occur if flavors are banned, especially with ENDS products. Current adult users will either go back to combustible cigarettes, which are deadly, or take the chance and purchase illegal products. Congress will have created a real health crisis that could have been avoided.
Again, I urge you to vote no on H.R. 2339. All votes on this legislation will be among those considered for CCAGW's 2020 Congressional Ratings. Sincerely, Tom Schatz, President, CCAGW. ____ NACS, Alexandria, VA, February 24, 2020. Re Key Vote Alert: Oppose the Reversing the Youth Tobacco Epidemic Act of 2019 (H.R. 2339). Hon. Nancy Pelosi, Speaker, House of Representatives, Washington, DC. Hon. Kevin McCarthy, Minority Leader, House of Representatives, Washington, DC.
Dear Speaker Pelosi and Leader McCarthy: The National Association of Convenience Stores (NACS) represents the convenience industry, which has approximately 153,000 stores in the United States and employees over 2.36 million workers. In 2018, the convenience industry generated $654.3 billion in total sales. Convenience stores serve about 165 million people per day--around half of the U.S. population--and the industry processes nearly 75 billion payment transactions per year. Yet, the industry is truly an industry of small businesses--approximately 62 percent of convenience store owners operate a single store, and approximately 74 percent of NACS' membership is composed of companies that operate ten stores or fewer.
The industry has devoted a substantial amount of time and resources to ensuring that convenience store operators are equipped to comply with federal, state, and local tobacco regulations. NACS shares Congress's concern with the number of underage users of e-cigarettes and supports legislative efforts to curb underage use of tobacco products.
NACS, however, opposes certain provisions in the Reversing the Youth Tobacco Epidemic Act of 2019 (H.R. 2339). H.R. 2339 would ban all flavored tobacco products--including menthol cigarettes, flavored smokeless tobacco, and flavored cigars-- which in turn would create an illicit market for these flavored tobacco products.
It's important for lawmakers to understand the impact that banning flavored tobacco products would have on the market. Today, the menthol market accounts for roughly 30 percent of cigarette sales and the flavored market accounts for roughly 50 percent of cigar sales. What's more, nearly 86 percent of smokeless tobacco sales are for flavored products. It is unreasonable to assume that consumers will simply transition away from these flavored products to unflavored tobacco alternatives.
Instead, a ban on menthol cigarettes, flavored smokeless tobacco, and flavored cigars will undoubtedly lead to a black market for these products because of the broad consumer base that exists among adult users. When that happens, the illicit purveyors of menthol cigarettes, flavored smokeless tobacco, and flavored cigars, operating outside of the law, will not discriminate among their customers based on age. We already see this problem in the large illicit tobacco market that exists today.
Moreover, growth in the illicit market for tobacco increases health concerns. Congress, when it passed the Tobacco Control Act in 2009, granted the Food and Drug Administration (FDA) the authority to regulate tobacco products, including oversight into how tobacco products are manufactured. Tobacco manufacturers create products that are fully scrutinized and regulated by FDA; black market suppliers may ignore those regulations. Banning menthol cigarettes, flavored smokeless tobacco, and flavored cigars will eliminate FDA's oversight of these products, an important public health safeguard that Congress intended in the Tobacco Control Act.
A ban of menthol cigarettes, flavored smokeless tobacco, and flavored cigars also will create a ``grey'' market. Without a domestic source for these products, adult users will purchase them over the Internet, when they travel abroad, and through bulk importers/distributors. Again, these products will be unregulated by the FDA, therefore losing whatever health protections that Congress intended in the Tobacco Control Act.
The FDA needs to have a plan and demonstrated ability to deal with the problems of the illicit market for tobacco products before anyone considers a ban on menthol cigarettes, flavored smokeless tobacco, and flavored cigars. If a ban comes first, children and public health will be negatively impacted by the resulting illicit market.
Because of these concerns, NACS is key voting the bill and urges you to vote against H.R. 2339. Respectfully, Lyle Beckwith, Senior Vice President, Government Relations.
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Mr. SMITH of Nebraska. Madam Speaker, I will include letters from Americans for Tax Reform, Altria, Taxpayer Protection Alliance, and the Tax Foundation.
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Mr. SMITH of Nebraska. Madam Speaker, I yield myself such time as I may consume.
It is important to note that I previously asked for some letters to be entered into the Record, and I think it is important to note some of the points that these organizations raise back to the ACLU and the Association of Social Workers and other groups.
They talk about this bill leading to overcriminalization and mass incarceration of people of color. It talks about the bill disproportionately impacting people in communities of color.
I think our country has had some, I think, very constructive conversations of late relating to these issues of mass incarceration and overcriminalization, and I think this bill sets us back in terms of those conversations that we have been having.
Madam Speaker,
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Mr. SMITH of Nebraska. Madam Speaker, as we have this exchange here, it is interesting to dig a little deeper here and certainly realize that there is a carve-out. I think we heard earlier there is a carve- out, actually, that would exempt the high-end cigars that would not have to be subject to this tax. And I guess I struggle to think why that would be if there are revenue concerns here and, you know, looking at a balance and so forth.
I just hope that we can end up with good public policy, but certainly this is not the vehicle to do that.
Madam Speaker,
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Mr. SMITH of Nebraska. Madam Speaker, I yield myself the balance of my time.
As we wrap up this discussion, I think perhaps both sides have good intentions. This would not be the first time that both sides would have good intentions, and the outcome would accomplish the exact opposite from what we would want.
We want youth to not vape, to not smoke. It is dangerous. And, certainly, I think we should also respect law-abiding adults exercising the choices that they wish to make in a reasonable context.
Madam Speaker, I think that this bill would actually set us back in many ways. As I mentioned earlier, the National Bureau of Economic Research found that Minnesota's efforts to bring so-called parity to the taxation of cigarettes and e-cigarettes actually flatlined the State's smoking-cessation trend, while other States that didn't raise taxes continue to see smoking decrease. That is very telling. And I think it is very instructive for all of us here as we formulate policy and, hopefully, keep future generations in mind with good public policy along the way.
Madam Speaker, I certainly urge a vote ``no'' on this bill, and I yield back the balance of my time.
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Mr. SMITH of Nebraska. Madam Speaker, I include in the Record these additional letters in opposition to H.R. 2339. 6 Reasons To Oppose HR 2339 (Pallone) Total Flavored Tobacco Product Prohibition
1. This bill bans all flavored tobacco products.
That means menthol cigarettes (36% of market), flavored moist smokeless tobacco (60% of market), flavored cigars (26% of market), and most pipe tobacco.
2. The age for tobacco was just raised to 21 nationwide.
Teen vapor trends need to be reversed. That's why Congress just raised the minimum age for all tobacco products to 21. Also, the FDA is now taking concrete steps to remove child- friendly vapor products from the market. We should give these policies time to work.
3. Adults 21 + can choose flavors in alcohol and cannabis (where legal), and they should be able to choose flavors in tobacco.
Adults 21 and older buy alcohol (and cannabis where it's legal). They are taxpayers, voters, and can serve in the military. Taking this decision away from adults 21 and over won't stop the behavior--it will just move it into the illegal market. We should respect adults and let them make these decisions.
4. Prohibition doesn't work. It never has.
This bill would criminalize the sale and distribution of these products for adults. That's Prohibition. In the 1920s, Alcohol Prohibition created an illegal market, increased crime, burdened law enforcement, and endangered the public.
5. Youth use of traditional products is DOWN. Underage vapor rates are too high. But underage use of traditional tobacco products is at historic lows. Longstanding public health efforts are working--so why take the risk of criminalizing these products and moving them into an illegal market where there is no regulation?
6. Banning large segments of the tobacco market guts government revenues.
Banning the sale of flavored tobacco products to adults would impact over a third of the industry, devastating jobs and the economy:
Over 250,000 retail and other jobs at risk
Over $13.6 billion in federal, state, and local tax revenues at risk annually (see states detail below) ____ Americans for Tax Reform
Today, Americans for Tax Reform issued a Key Vote Alert in opposition to H.R. 2339.
Here are the top 6 key facts you need to know before the vote on the full House floor vote on H.R. 2339 (Reversing the Youth Tobacco Epidemic Act) this week:
1. Prohibition Never Works, But it Does Create Profitable Criminal Enterprises.
2. Congress Just Passed Tobacco 21 to Address Youth Use of Tobacco Products.
3. A Flavored Tobacco Product Ban Would Kill Over 400,000 Jobs.
4. State, Local, and Federal Government Would Lose over $130 Billion in Tobacco Tax Revenue Over 10 Years.
5. Criminalizing The Sale of Some Tobacco Products Would Reverse Progress on Criminal Justice Reform.
6. This Bill is a Tax Increase.
Rep. Frank Pallone's flavored tobacco product ban bill is opposed by Americans for Tax Reform, Citizens Against Government Waste, FreedomWorks, Heritage Action, Taxpayers Protection Alliance, Independent Women's Forum, the Competitive Enterprise Institute, the Consumer Choice Center, and Reason, among others.
But it's also opposed by the American Civil Liberties Union, the Center for Popular Democracy, the Law Enforcement Action Partnership, the Drug Policy Alliance, the National Association of Social Workers, the National Association of Criminal Defense Lawyers, and Al Sharpton's National Action Network. You can read their letter here.
Here's what you need to known regarding the inclusion of a new national tax on nicotine e-cigarettes and vapor products (Section 501 of the bill):
The tax imposed by this bill would result in a $5.01 tax on an average 30 milliliter bottle of refillable vapor product liquid that contains 6 milligrams of nicotine, the type of products many smokers purchase in thousands of vape shops in America. For multi-packs of ``closed-system'' products sold in 150,000 convenience stores, the tax would be range between $3-5 per pack. Compare that to the federal excise tax on combustible tobacco cigarettes, which is $1.01 per pack. Taxing reduced risk electronic cigarettes at a significantly higher rate than cigarettes works at cross purposes with both the government and free market's ongoing effort to reduce the harm associated with cigarette use. That's what this bill does.
Note: because this language was previously a stand-alone bill (H.R. 4742), the impact on taxpayers has changed since it was first scored. Banning products that +80% of adult consumers use diminishes the likelihood of collecting much money. This bill is still a net tax hike and will be scored as such.
Americans for Tax Reform urges you to reject H.R. 2339, which would create the biggest black market in America since the 1920's, fueling criminal enterprises without any good reason for doing so. This bill is a tax increase and represents a moral crusade against disfavored consumer choices without respect to the tools that already exist that could address some of the concerns of proponents. ____ Taxpayers Protection Alliance, Washington, DC, February 12, 2020. House of Representatives, Washington, DC.
Dear Representative: On behalf of millions of taxpayers and consumers across the United States, the Taxpayers Protection Alliance (TPA) urges you to vote against the Reversing the Youth Tobacco Epidemic Act (H.R. 2339), which would, amongst other things, impose a full ban on the sale of flavored e- cigarette products throughout the U.S. H.R. 2339 would also ban menthol-flavored conventional tobacco. These deeply misguided proposals would lead to the demise of millions of Americans by forcing smokers across the country to continue using deadly combustible cigarettes.
The scientific evidence is overwhelming and incontrovertible that vaping saves lives. Flavors provide an effective exit ramp for adults to quit smoking but have no impact upon teen uptake. Smoking rates are at their lowest in history and dropping dramatically. Furthermore, there is no gateway from vaping to smoking, and menthol cigarettes have no demonstrable impact on youth uptake.
Countless studies conclude that e-cigarettes are a proven and safe way for people to quit smoking. A recent U.S. National Academies of Sciences, Engineering and Medicine report on e-cigarettes found that, based on the available evidence, ``e-cigarettes are likely to be far less harmful than combustible tobacco cigarettes.'' The United Kingdom (UK) Government and all major medical bodies now ``encourage'' smokers to use e-cigarettes as a quit-smoking aid. This is not surprising because of the overwhelming evidence on the effectiveness of a product that is ``around 95 percent less harmful than smoking,'' a figure confirmed by Public Health England (part of the U.K. government) and reaffirmed every year since 2015. Similarly, air quality studies have found that e-cigarettes pose no threat to bystanders via ``passive smoking.'' Hundreds of studies have been published in the course of the last few years, measuring everything from cardiovascular health to lung capacity and regeneration. In fact, the only study to have found any negative impact of vaping on heart health has been thoroughly debunked; it was discovered that the heart attacks it claimed were correlated to vaping happened ten years prior to the individuals taking up vaping.
So powerful is the life-saving potential of these products that, according to the most comprehensive peer-reviewed research on the effects of switching coordinated by the George Washington University Medical Center, 6.6 million lives could be saved over the next ten years if a majority of U.S. smokers quit smoking through the use of e-cigarettes.
In addition, numerous studies have shown that e-cigarettes are considerably more effective than traditional nicotine replacement therapies. In January 2019, the New England Journal of Medicine reported the results of the largest and most comprehensive of these, finding unequivocally that e- cigarettes are nearly twice as effective as conventional nicotine replacement products (such as patches and gum) for quitting smoking.
As a result of the introduction of vaping products, smoking rates in the United States have plummeted in recent years. In 2018, 13.7 percent of U.S. adults smoked, a sharp decline from 20.9 percent in 2005. Most of this decline has occurred since the introduction of e-cigarettes, as smokers now have more options than ever to kick their deadly habit. In particular, 5.8 percent of high school students smoke, down from more than 15 percent in 2011.
Contrary to anti-vaping arguments, there is no evidence that e-cigarettes provide a ``gateway'' to smoking for youths as they enter adulthood. This has been demonstrated through numerous studies which instead find that vaporized nicotine has almost exclusively been taken up by smokers attempting to quit or lower their intake, therefore acting as a ``gateway'' away from tobacco smoking. Only 1 percent of daily users of e-cigarettes were not previous smokers or tobacco users. A 2015 survey of nonsmoking teens aged 13-17 found interest levels in flavored e-cigarettes of 0.4 out of a possible score of 10. An April 2019 study funded by the UK's National Institute for Health Research and led by Cardiff University concluded that ``fears over a resurgence in youth tobacco smoking because of the rise in e-cigarette use are largely unfounded to date'' and that there is ``no evidence'' that e- cigarettes are causing young persons to commence smoking traditional combustible tobacco. In October 2019 the prestigious medical journal Nicotine and Tobacco Research found that, ``E-cigarette use does not appear to be associated with current, continued smoking.'' As such, ecigarettes are a gateway away from smoking and give teens who were already smokers a safer alternative.
While flavors may be helping conventional smokers quit smoking, the evidence shows that flavors play little to no role in inducing middle-and-high school students to use e- cigarettes. A 2016 study published in Tobacco Control used a national phone survey to ascertain teenage usage and interest in e-cigarettes and attempted to gauge the role of flavor in increasing interest in these products. The researchers found that, of teenagers that have never smoked, only 3.3 percent expressed interest in trying e-cigarettes and that there was no evidence for flavors driving e-cigarette uptake. Fewer than a third of high school students self-report to care about flavors, while academic studies have found that teenage non-smokers' ``willingness to try plain versus flavored varieties did not differ.''
Advocates of greater vaping restrictions continue to ignore the evidence and cite instances of e-cigarettes allegedly inducing lung illnesses. But, as confirmed by the Centers for Disease Control and Prevention and corroborated by numerous peer-reviewed academic publications such as the New England Journal of Medicine, every case of illness and tragic death has been as a result of illicit, black-market THC vaping devices bought on the streets and laced with substances such as Vitamin E acetone.
There is no evidence whatsoever that menthol cigarettes are in any way more harmful or dangerous than conventional combustible cigarettes. There is similarly no evidence that menthol cigarettes are in any way more likely to be a contributing factor to people taking up smoking. A recent analysis of data from the National Survey on Drug Use and Health found that states with more menthol cigarette consumption relative to all cigarettes actually have lower rates of child smoking. In addition, econometric analysis consistently shows consistent nonpredictive relationships between relative menthol cigarette consumption rates and use of any age group. Youth menthol smoking has already become less popular than non-menthol smoking, and on the current trend line, youth usage of menthol cigarettes will be at a rate of near-zero within the next few years. Curtailing menthol cigarettes will only succeed in damaging already- fraught race relations. More than 80 percent of black smokers prefer menthol cigarettes, compared to less than 30 percent of white smokers. As the tragic case of Eric Garner shows, tobacco prohibition can easily escalate into deadly encounters with law enforcement. Policymakers must consider racial disparities in the consumption of tobacco products, and refrain from restrictive policies with myriad unintended consequences.
Illicit tobacco is lucrative source of funding for terrorism, with the U.S. State Department having described international tobacco smuggling as a ``threat to national security.'' Their report detailed how ``we know that 15 of the world's leading terrorist groups regularly rely on illicit cigarettes for funding, including al Qaeda, the Taliban, Hezbollah, and Hamas. Illicit cigarettes are now second only to the heroin trade in helping fund some of the Taliban militias.''
TPA urges you to carefully examine the facts and science attesting toe-cigarettes' efficacy as a powerful quit-smoking aid and reject this grossly irresponsible bill. Regards, Tim Andrews, Director. ____ [From Tax Foundation, Feb. 12, 2020]
Banning Flavored Tobacco Could Have Unintended Consequences (By Ulrik Boesen)
Several states have considered bans on flavored tobacco and nicotine products this legislative session, spurred by increased vaping by minors. Among them are California, Maine, Maryland, New York, Vermont, and Virginia. There is also a federal proposal to ban flavors in tobacco products. While youth uptake is a very real concern which deserves the public's attention, outright bans could impede historically high smoking cessation rates. Lawmakers must thread the needle between protecting adult smoker's ability to switch and barring minor's access to nicotine products.
Aside from public health concerns, a ban on flavored tobacco, especially when including cigarettes, would have significant tax implications and result in unintended consequences such as increased smuggling. Tobacco excise taxes are already an unstable source of tax revenue. Further narrowing the tobacco tax base by banning a portion of tobacco sales altogether could worsen the instability of this revenue source while driving up the costs of administration and law enforcement associated with the ban, especially if the lost revenue is made up by raising the tax rate on the remaining tobacco tax base.
Cigarettes make up about 82.5 percent of the total tobacco market and even more of the excise tax revenue due to higher rates on cigarettes versus other tobacco products. According to sales data, about 35 percent of the U.S. cigarette market is flavored, which means that 35 percent of the revenue collected would be affected by a ban. The flavor used in cigarettes is almost exclusively menthol.
Below is a calculation of implicated revenue in the states that are considering a ban. The numbers are based on tax collections and sales of menthol cigarettes. On top of this number one could add reduced revenues from chewing tobacco, cigars, cigarillos, and in some states flavored vapor liquid. STATE REVENUE FROM CIGARETTE EXCISE TAXES ON MENTHOL CIGARETTES ---------------------------------------------------------------------------------------------------------------- Revenue from Menthol Smokers Menthol Total Cigarette State As % of Smokers Cigarettes Excise Revenue (FY2018) (FY2018) (FY2018) ---------------------------------------------------------------------------------------------------------------- California................................................ 28.1% $528,848,463 $1,882,023,000 New York.................................................. 38.6% $414,418,000 $1,073,0622,000 Maine..................................................... 17.5% $20,851,000 $119,146,000 Maryland.................................................. 54.3% $180,080,000 $331,639,000 Vermont................................................... 17.6% $10,839,000 $61,584,000 Virginia.................................................. 42.7% $59,350,000 $138,992,000 Federal*.................................................. 35.2% $4,268,355,168 $12,126,009,000 ---------------------------------------------------------------------------------------------------------------- * Implicated revenue for the federal government if menthol cigarettes were federally banned. Source: Nielsen
Consumer Data; Orzechowski and Walker, ``The Tax Burden on Tobacco,'' Volume 53, 2018; Tax Foundation
calculations.
The figures indicating revenue from menthol cigarettes reflect the loss of revenue if all current consumers of menthol cigarettes were to quit. That is almost certainly not going to happen. In reality, some will quit, some will substitute to other nicotine products, and some will access the products illegally. The last option is the most fiscally problematic because states will not only incur lost revenue, they will also take on increased costs related to enforcement of the ban. While it is impossible to estimate the exact revenue effect, it is clear that revenues will decline.
The impact differs significantly from state to state with Maryland and Virginia seeing the largest effect. This is likely due to larger minority populations in those states. In a national survey in 2015, 76.8 percent of non-Hispanic black adult smokers reported smoking menthol products.
As I argue in my latest publication, there are several problems with bans. The Pigouvian concept of internalizing externalities suggests that inefficient market outcomes can be addressed by an excise tax equal to the negative externality. In other words, using taxes to price in societal cost related to a product, such as increased governmental medical expenses from cancers caused by tobacco smoke. This is part of the idea behind levying excise taxes on tobacco products. However, flavored nicotine products are helping adult smokers quit cigarettes and switch to less harmful products.
Several states seem to have had this in mind and have taken a lighter approach to the taxation of vaping products to keep an incentive for smokers to move towards less harmful vaping. Thus, on the one hand there is an argument for lower taxation on vaping to move people away from smoking. On the other hand a ban on flavored products would push users away from vaping and back towards more harmful traditional tobacco products or into the illegal market.
In fact, a recent publication found that 32,400 smokers in Minnesota were deterred from quitting cigarettes after the state implemented a 95 percent excise tax on vapor products.
Another study concluded that vapor products are highly elastic and ``for every one standard e-cigarette pod (a device that contains liquid nicotine in e-cigarettes) of 0.7 ml no longer purchased as a result of an e-cigarette tax, the same tax increases traditional cigarettes purchased by 6.2 extra packs.''
In the same way that exceptionally high tax rates on products can create the incentives for illicit activities, a ban certainly opens the door to contraband and bootleg activities. Thus, bans are likely to hurt public health by limiting adult smokers' ability to quit cigarettes and fuel black market activity similar to when states levy heavy taxation on cigarettes. Local bans in particular invite smuggling activity in the same way that occurs when localities have high cigarette excise taxes.
Cigarettes are already being smuggled into and around the country in large quantities, and nicotine-containing liquid is coming into the U.S. from questionable sources. Black market liquids and cigarettes have the problem of being extremely unsafe and cost governments billions in lost taxes. The recent serious pulmonary diseases have prompted the FDA to publish a warning about black market THC-containing liquid. Other reports of illicit products containing dangerous chemicals resulting in serious conditions have been released over the last months.
On top of the dangers to consumers, the legal market would suffer, as untaxed and unregulated products have significant competitive advantages over high-priced legal products. This would impact not only the large number of small business owners operating over 10,000 vape shops around the country but also convenience stores and gas stations relying heavily on vapers as well as tobacco sales. Policymakers should not lose sight of the law of unintended consequences as they set tax rates and regulatory regimes for nicotine products.
These unintended consequences have a real cost which the taxpayers would have to cover, while the ban would result in less revenue from the legal and regulated market. In states like California, where tobacco tax revenue is earmarked to certain government programs, the impact on revenue could lead to underfunded programs which will need funding from other sources.
The prospect of a ban on flavored tobacco and nicotine products highlights the complications of contradictory tax and regulatory policy, the instability of excise taxes that go beyond pricing in the cost of externalities, and the public risks of driving consumers into the black market through excessive taxation or regulation.
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