New York banned the sale of flavored e-cigarettes Tuesday, a move that comes as federal health officials investigate a mysterious surge of and seven deaths linked to vaping. Retailers will have two weeks to remove merchandise from store shelves.
The vote by the state Public Health and Health Planning Council means the prohibition, which covers flavored e-cigarettes and other vaping products except for menthol and tobacco flavors, goes into effect immediately.
Governor Andrew Cuomo, a Democrat, had proposed the emergency ban Sunday, citing surging use among young people.
According to data from the state health department, nearly 40% of high school seniors and 27% of high school students overall in the state use e-cigarettes. Use among high-school students went from 10.5% in 2014 to 27.4% in 2018.
Cuomo pointed to vaping flavors like bubblegum and cotton candy that he said seemed aimed at young people. "We don't really know the health consequences of these devices," he said on public radio Monday.
Vape shop owners say they're considering a legal challenge to the new regulation, which they say should have gone before lawmakers for hearings, debate and a vote. Several spoke at the meeting to urge council members to reject the ban.
Mike Kruger owns two vape shops in the Albany region and said the ban could force hundreds of businesses like his to close. He said smokers looking to quit will have fewer options under the ban, potentially leading to an increase in the use of traditional tobacco products. As for the breathing illnesses, Kruger said he believes they are the result of people buying black market vape liquid, not the items he sells.
"We are bypassing the legislative process," he said of the ban. Kruger added that many adults seek out the flavored versions. He himself prefers blue raspberry. "Vaping has been around for 12 years. And now this."
Keith Mautner, who owns a vape store in Queens and uses the products himself, estimates that flavored e-cigarettes make up 95% percent of his business. He said state leaders should have cracked down on manufacturers if they were concerned about the products being used by teens.
"That's the problem, the manufacturers. It's not us," he said.
The exemption for menthol was criticized by some health groups, who worried young people would switch to that variety. It includes all types of flavored vaping products, including disposable and refillable devices. American Cancer Society Cancer Action Network Managing Director of Government Relations Bill Sherman in a statement specifically called out the menthol exemption for making the rule weak.
Juul Labs, Inc., the company with the biggest footprint in the industry, has said it agrees with the need for action in the flavored e-cigarette sector and will comply with any final state and federal regulations.
The American Vaping Association said in a statement that "Prohibition has never worked in this country and it will now once again fail miserably in the State of New York."
"There is blood on the hands of the unelected bureaucrats who voted to take away far safer alternatives to the combustible cigarettes," the American Vaping Society said in a statement. "Make no mistake about, a flavor ban will send some adult vapers back to smoking, which is an outcome that even the American Cancer Society recently said would be disastrous. This isn't about health, it's about protecting a billion dollars a year in cigarette tax revenue."
Nationwide, health officials are investigating hundreds of cases of serious breathing illnesses in people who use e-cigarettes and other vaping devices. They have identified 380 confirmed and probable cases in 36 states and one territory, including six deaths. President Trump has proposed a federal ban on flavored e-cigarettes and vaping products.
New York becomes the first state to enact the ban. Michigan approved a ban that includes menthol, but not tobacco flavor, but rules for enactment have not yet been put into place. Other states are also considering bans.
The statewide smoking age is going up to 21 after Cuomo signed legislation earlier this year. He also recently signed a mandate that requires state anti-tobacco campaigns to also include vaping.
The emergency regulation enacted Tuesday will expire in 90 days unless it's renewed. Cuomo has proposed legislation that would put the ban in state law, eliminating the need to renew the ban.
The FDA has been able to ban vaping flavors since 2016 but has yet to take the step. The global market is estimated to have a value of as much as $11 billion.