On Friday, November 22, 2019, President Donald J Trump met with representatives from the health and vapor industry to discuss the future of vaping regulation at the federal level. Topics of conversation included a federal age limit of 21, a federal flavor ban, the health risks of unregulated products, and the economic effects of legislating a growing industry. No single consensus was reached on any topic, but it was an instructive meeting and a fascinating look into the mind of the President as he prepares to weigh in on this important topic.
Many representatives of health and anti-tobacco groups were present, and it was striking how extremely similar their positions all were: that a federal flavor ban, including the banning of mint and menthol flavors, was necessary to reduce youth vaping. None of them strayed far from this message or had any compromise or alternate positions, and none were able to tie their goal of reducing youth vaping to their method of a flavor ban.
It was very interesting to see that none of the anti-tobacco groups led the charge for things like increased age verification, restriction of sales to vape shops, or increasing the federal age of purchase to 21. While all of the representatives appear entirely genuine and dedicated to the laudable goal of reducing youth vaping, their unnatural focus on doing so by banning flavored vape juice is extraordinarily perplexing.
Much more varied were the positions of the vape industry attendees. Both Juul and Njoy were represented; NACS sent their President and CEO, Hank Armour; Greg Conley from the American Vaping Association was also a major voice, as was Tony Abboud from the Vapor Technology Association; Scott Eley spoke for our partners at AEMSA. Conley and Abboud, in particular, were substantial voices for reasoned discourse, and powerfully represented the views and needs of the vaping community - not just big tobacco devices like the Juul, but open vape juice systems like those we know and love.
Senator Julie Adams from Kentucky had a valuable suggestion that was mirrored by many in the meeting, that of raising the federal age for tobacco products to 21, which might help reduce so-called “social” access to vape products for teens, which the National Youth Tobacco Survey finds is 70 percent of the access teens have to vapor products. This indeed is the rationale for the 21-year-old drinking age in much of the US, and many states have found success with this. Mr Armour of the NACS expressed his opinion that convenience stores have the ideal infrastructure for age verification - since they already check ID for alcohol and tobacco - while representatives of the vapor industry expressed their preference for vape shops having sole access to vapor products, given that they can simply keep anyone underage from entering entirely.
Everyone agreed a higher minimum age of purchase was reasonable. The President himself specifically said, “We’re going to be doing that. Twenty-one, we’re going to be doing that,” which is the strongest indication we’ve had yet of what direction the President is leaning in this issue.
Tony Abboud also suggested more strict penalties for failure to comply: that three strikes of selling to a minor would cost a store its tobacco sales license. Additionally, he advocated third-party age verification as a method of restricting access to teens. Interestingly, despite this being the stated goal of the health industry representatives, they remained curiously quiet on these suggestions for directly preventing youth access to vape products. Abboud also advocated more strict marketing guidelines on how and where vapor products could be marketed, another plan with a very direct effect on youth vaping, but the anti-tobacco lobby remained silent on these commonsense approaches.
The risk of counterfeit flavored products was discussed. This is a significant consideration since a black market will naturally arise for any popular product that is made illegal. As the recent CDC report shows, unregulated adulterants are responsible for the current THC vape health crisis. Counterfeit Chinese-produced Juul pods are common, with their contents being of varying degrees of quality and safety, and absolutely unregulated by any standards organization.
Economics was a substantial topic of discussion. While exact numbers were debated, no one disputed that a flavor ban would cost jobs, potentially hundreds of thousands of jobs. This absolutely gave the President pause. In recent weeks, he’s been made forcefully aware of the political price of a flavor ban. His advisors have pointed to the widespread #WeVapeWeVote protests as evidence that this could be a significant issue in the 2020 election - not only due to vapers losing access to flavors but also because of the economic hardship of vape shop employees losing their jobs.
There was also some surprisingly frank discussion of how Juul and Njoy differ from the vape shop open-system vape juice market: scale. They have the advantage of massive stores of capital they can use to ride out any flavor ban and let bankruptcy clear the market for them. As Mr Nivakoff of Njoy said, “it’s not bad for my business for you to ban flavors; it centralizes an oligopoly for me and three other brands that exist on shelves in 153,000 convenient stores.”
That wonderfully honest admission clarifies a potential source of support for the flavor ban: the only people who truly benefit from a flavor ban, after all, are the companies Nivakoff lists: “JUUL, NJOY, Reynolds, and Imperial Tobacco, which owns Blu.” So why, then, are proponents of the flavor ban talking about keeping these products out of the hands of kids, when the real beneficiaries are Big Tobacco?
It is possible that some in support of a flavor ban are simply unfamiliar with vaping, and ignorant of the industry, the hobby, and the people. Senator Mitt Romney attended, and said, “Most adults are not using flavors,” which of course is very radically untrue: the percentages of flavor use by adults and teens is roughly the same, in the 80 to 90 percent range.
If Senator Romney has been told by someone that only children vape candy, dessert, or fruit flavors, and adults all vape tobacco flavors, that would explain why he believes a flavor ban would prevent youth vaping without impacting adult vaping. But if someone told him that, they were either mistaken, or simply lying to him.
Health was a major topic of discussion, not least to say that health wasn’t allowed to be a topic of discussion. Because the FDA has not yet weighed in on the health effects of vaping, particularly in comparison to smoking, many were enjoined from using health or smoking cessation arguments to bolster their case for the continued sales of flavored vapor products. While the British government’s acceptance of vapor was mentioned, it wasn’t allowed to be an argument against a flavor ban.
Certainly, President Trump kept his own views close to the vest. “We’re going to be announcing very soon. We did have an instinct but we’ll be announcing,” he said at the conclusion of the meeting. “It’s going to be very interesting. We’ll let you know pretty soon.” His priorities, though, he made clear: “We’ve got to take care of our kids.”
No one disputes that, Mr President. The question, then, is how best to serve our kids, while providing the greatest degree of freedom for all Americans. The proponents of a flavor ban say they want to help children, but they only help Big Tobacco. Vapor industry representatives have better ideas to more directly impact the real goal: eliminate youth marketing, use third-party age verification services online, raise the federal age to 21, and perhaps only sell vapor products in age-controlled dedicated vape shops. It is by these methods, and not by selective prohibition, that we’ll take care of our kids.