Vapor Technology Association Says Potential Flavor Ban Is Shortsighted, Would Not Address Youth Use Or Dangers Of Black Market Illegal Products

WASHINGTON, Sept. 25, 2019 /PRNewswire/ -- The Vapor Technology Association (VTA) today called on the Trump Administration, the FDA, the FTC and Congress to implement twelve important steps to help ensure controlled distribution of all tobacco products, including e-cigarettes, and limit access and appeal of all tobacco products to youth.

The flavor ban proposed by the Trump Administration and certain members of Congress will do little to address underage use of e-cigarettes and, more importantly, will do nothing to control the marketing of vapor products.   Tony Abboud, Executive Director of the Vapor Technology Association, said, "We have listened to our critics complain for years that the vapor industry is 'marketing to youth' but those same critics have focused on banning products and refused to do anything to address marketing.  VTA has long been a proponent of strict marketing and advertising standards. We first developed and implemented marketing restrictions in 2017 and asked FDA and FTC to enforce them early in 2018.  We have advocated for such standards at the federal and state level and have led our industry in implementing and advocating for them. Now, we call on regulators and lawmakers to come together with the industry to formally implement meaningful and critical alternatives that have thus far been unaddressed. To be clear, removing flavors in nicotine-containing vapor products will not address any of the serious illness issues that the CDC and FDA are reviewing since over 80% of those tragic incidents are being tied to the use of black market THC products, not store-bought FDA-registered and FDA-regulated nicotine vapor products (otherwise known as e-cigarettes).  Regulators at the federal and state levels have refused to clearly acknowledge the direct link between black market THC products and the recent outbreak of lung illnesses, and are instead focused on implementing flavor bans that would adversely impact the American public."

Dr. Michael Siegel, Boston University Professor of Public Health, who has made clear that there is no connection between flavored e-cigarettes and the illnesses being reported, said "CDC has hyped up the risks of vaping so much that they have literally said nothing about youth vaping of marijuana."

Additionally, a ban on flavors would have serious and immediate adverse effects on the U.S. and state economies causing thousands of small businesses to close and tens of thousands American workers to be laid off, competition to be eliminated, and adult smokers left with no choice other than to start smoking again or resort to a black market.

The economic impact and potential for the American vapor industry to compete with the combustible cigarette is enormous: $24.5 billion in total economic impact; $7.5 billion in wages generated for American workers; and $15 billion in federal, state and local taxes generated.^[1]

Much of the American vapor industry utilizes a new and independent supply and distribution channel separate from the traditional tobacco distribution channel. It sells a wide variety of flavored e-liquids, which 10-13 million adults rely on to quit and/or reduce smoking cigarettes. Without flavors and a wide variety of products on the market, the licensed, FDA-registered and FDA-regulated American vapor product distribution chain will close. No business model would enable these vape shops to remain open if they can sell only "tobacco, mint and menthol" as has been proposed. The result is that upwards of 166,000 direct and indirect jobs would be lost.

Most importantly, continuing down the road of banning flavors will only cause millions of adult smokers and former smokers to go back to smoking or rely on what will be a new and larger black market.

Fortunately, many alternatives to a flavor ban exist to directly address youth vaping, while preserving 14,000 small businesses and prevent a significant adverse economic impact.

VTA calls on the Administration, FDA, FTC and lawmakers to come together with the industry to implement meaningful and critical alternatives that have thus far been unaddressed:

1.  "Tobacco 21" - Raise the age from 18 to 21 to purchase tobacco and nicotine vapor products, instead of restricting flavors.

Rationale: Nearly 90% of minors obtain vapor products from schoolmates, friends, family, and others, and public health experts say that raising the age to purchase will have the greatest impact in keeping all tobacco products, including vapor products, out of the hands of minors. Leader McConnell has introduced his bill to accomplish this goal, and with support, this major piece of legislation to curtail youth access to tobacco products will be signed this year.

2.  Implement Strict Marketing Standards to prevent nicotine vapor products from being marketed to or attractive to youth.

Rationale: VTA created the industry's first marketing standards in January 2018. Industry agrees that vapor products should not be marketed to youth. Imposing strict marketing, advertising, labeling and packaging restrictions is the only way to address the real issue. Some of the following provisions go further than other age-restricted industries and should be applied to all tobacco products, including vapor products:

• Ban print advertising except in adult-only publications or media (adults are >85% of audience).
• Ban advertising and/or sponsorship at stadiums, concerts, sporting or other public events that are not primarily targeted to adults (adults are >85% of audience)
• Ban offers of any school or college scholarships by any company selling tobacco products.
• Ban television advertising of any tobacco products, including any vapor products.
• Ban advertising, marketing and sale of tobacco products that:
• Use the terms "candy" or "candies" or variants in spelling, such as "kandy" or "kandeez," "bubble gum," "cotton candy," and "gummi bear", and "milkshake."
• Use the terms "cake" or "cakes" or variants such as "cupcake."
• Use packaging, trade dress or trademarks that imitate those of food or other products primarily targeted to minors such as candy, cookies, juice boxes or soft drinks.
• Use packaging that contains images of food products primarily targeted to minors such as juice boxes, soft drinks, soda pop, cereal, candy, or desserts.
• Imitates a consumer product designed or intended primarily for minors
• Use cartoons or cartoon characters.
• Use images or references to superheroes.
• Use any likeness to images, characters, or phrases that are known to appeal primarily to minors, such as "unicorn".
• Use a video game, movie, video, or animated television show known to appeal primarily to minors.
• Ban advertising and marketing of tobacco products, including vapor products, that:
• Makes any reference to the product as a smoking cessation device or as a product which may be used to help quit smoking.
• Makes a claim of therapeutic value, as being safe or healthy for consumers, or as not producing secondhand health effects.
• Using modified risk descriptors or claims such as "light," "low," and/ or "mild", having no ash or smoke, having no tar, being less harmful, posing lower risk of disease or as containing reduced or zero levels of harmful ingredients.
• Does not accurately represent the ingredients contained in the products.
• Uses health professionals to market or otherwise endorse a tobacco product, directly or indirectly.
• Uses contracted spokespeople or individuals that do not appear to be at least 25 years of age.
• Ban advertising on outdoor billboards near schools and playgrounds.
• Require labels to include warnings protecting youth such as "Sales to Minors Prohibited" or "Underage Sales Prohibited" and/or "Keep Out of Reach of Children".
• Require all advertising to be accurate and not misleading.

3.  Close Loopholes by Banning Sales on Third-Party Marketplaces like Alibaba, Amazon, eBay, et al. 

Rationale:  Third party sales from unregulated, unlicensed tobacco product distributors are not age verified. Third-party online sellers should be prohibited from allowing the sale or re-sale of nicotine-containing products and allowing the sale or re-sale of unregulated cannabis or THC vaping products, including any packaging for unregulated cannabis or THC vaping products. The FTC and FDA should immediately demand that third-party sellers remove all such products from their marketplaces, block the sale of any such products in the future, and actually enforce that policy going forward. Congress should act accordingly. Without strict enforcement, such platforms can provide a third-party sales channel for counterfeit products, unregulated cannabis and THC products, and packaging or other materials that enable black market sales of illicit products.

4.  "Three Strikes and You're Out" for any retailer accumulating three violations in three years for selling nicotine vapor products to minors lose the right to sell nicotine vapor products.

Rationale: Enforcement has not kept up with the times. This must change.  Today, all retailers, including convenience stores and gas stations, can be cited for selling tobacco products to minors seven (7) times in a three-year period before losing the ability to sell tobacco products. Three strikes in three years is serious and necessary enforcement.

5.  Restrict Sale of "Super High Nicotine" Products to Adult-Only Stores.

Rationale: Prior to 2018, flavors had been available for sale in the U.S. without any material increase in vaping. The spike in youth vaping appears associated with the wide-spread introduction of a super high nicotine concentration ? a product containing a concentration of nicotine higher than 50 milligrams per milliliter. While these "super high nicotine" products can help adult smokers quit smoking combustible cigarettes, restricting such a product to adult-only stores would dramatically limit youth access and potential addiction.

6. Tax, Enforce & Educate.  Impose taxes and/or user fees to pay for education and enforcement by implementing a 3% ad valorem tax and/or user fees on vapor products instead of restricting flavors.

Rationale: Taxes create a significant deterrent to youth use of tobacco products. Imposing an ad valorem tax on vapor products and/or user fees would provide FDA more resources to better enforce the laws and conduct anti youth-vaping education campaigns.

7. Ban Self Service Displays. Require all tobacco products, including vapor products, to be behind a counter or in a locked display and accessible only by an employee.

Rationale: Requiring employee assistance will limit and discourage youth access.

8. Point of Sale Age Verification. Require use of third-party age verification software or technology for all online sales and all brick and mortar sales.

Rationale: Eliminate potential purchaser fraud and/or employee error and fake IDs by implementation of third-party software or technology that can verify age and identity.

9. Brick & Mortar Warning Signs. Tobacco product retailers must display signage indicating that (a) "Unaccompanied Minors Are Not Allowed on Premises" or (b) "Products are Not for Sale to Minors" or (c) "Underage Sale Prohibited."

Rationale: Warning signs deter youth. Each clear statement makes it harder for youth to access.

10. End "Straw Man" Sellers. Make it illegal for any person who is not a licensed tobacco product dealer to sell, barter for, or exchange any tobacco product.

Rationale: Close to 90% of youth purchases of tobacco products come from social sources (i.e., friends, family, and adults ? even strangers ? who legally buy those products). Penalizing straw purchasers is a must since this is the primary point of access for underage users.

11. End Bulk Sales. Prohibit the retail sale of more than 2 devices or 5 packages/bottles of e-liquids in one transaction.

Rationale: Illegal straw man sellers buy in bulk. This practice should be prohibited for both online and brick and mortar retailers to thwart illicit trade.

About The Vapor Technology Association

The Vapor Technology Association is the leading U.S. non-profit industry trade association whose 1000+ members are dedicated to innovating and selling high quality vapor products that provide adult consumers with a better alternative to traditional combustible cigarettes. VTA represents the industry-leading manufacturers of vapor devices, e-liquids, flavorings, and components, as well as the largest wholesalers, distributors, importers, and e-commerce retailers, in addition to hundreds of hard-working American brick-and­ mortar retail store owners throughout the United States.

Media inquiries:
[email protected]

[1] https://vaportechnology.org/wp-content/uploads/2019/09/Vapor-Industry-Economic-Impact-Study-by-Dunham-Associates-2019-Updated.pdf  

SOURCE The Vapor Technology Association