Southern States Advance Harmful Tobacco Legislation

National health agencies with authority over tobacco regulations in the United States and the United Kingdom, the Food and Drug Administration (FDA) and Public Health England, respectively, have recognized tobacco harm reduction (THR) products as less harmful alternatives to traditional combustible cigarettes. These products, including e-cigarettes and vaping devices, have helped millions of adult smokers quit smoking. THR products, which avoid burning tobacco and deliver nicotine without the hazardous chemicals found in conventional combustible cigarettes, can save lives by transitioning smokers away from those harmful products. State and federal regulations requiring "premarket authorization," however, have restricted the availability of THR products, which will mean less access and poorer health outcomes for smokers.

Regulations that specifically target THR products and raise their price or reduce their availability to adults not only threaten Americans' health but also negatively impact state and federal budgets reliant on excise tax revenues, detrimentally impact 380,000 small businesses, encourage market consolidation in the tobacco industry, and fail to target underage tobacco use. These regulations also push consumers and sellers into the unregulated black market for tobacco, putting consumers at risk of tainted products, many of which come from China. Responsible policymakers should acknowledge the benefits of THR products in mitigating the costly health impact of combustible cigarettes. Yet proposals to restrict the availability of THR alternatives relative to cigarettes continue to move through state legislatures, including Virginia and South Carolina.

The Virginia General Assembly reconvened a special session on April 17, 2024, to approve amendments that Governor Glenn Youngkin (R) made through his partial veto power to two tobacco-related bills. SB 550 and its companion HB 1069 require all vapor products sold in Virginia to receive an individualized pre-market authorization from the FDA under its Deeming Rule for Electronic Cigarettes and Other Electronic Nicotine Delivery Systems (ENDS) enacted on August 8, 2016.

According to the Consumer Advocates for Smoke-free Alternatives Association (CASAA), pre-market tobacco authorization (PMTA) bills like SB 550 and HB 1069 effectively constitute "a de facto ban on products that FDA is supposed to be reviewing" because "consumers will only have access to a handful of products that have applications pending, or are authorized by FDA." The association points out that the "FDA has arbitrarily denied marketing orders for nearly 1 million products and is failing to move forward with authorizing others."

Richmond vape retailer Michael Midgette "pushed back on the FDA approval requirement, suggesting the products the federal government had approved represent a small and low-quality collection of brands that few are interested in." To the extent these bills drive popular brands into untaxed black markets, they would cost the Commonwealth substantial revenue by foregoing the $0.066 per milliliter tax on liquid nicotine which generated $57.4 million in 2023.

A February 13, 2024, Vice News report stated that the British government had "announced a ban on all single-use vapes, citing the need to prevent children from accessing these addictive devices, even though selling them to individuals under the age of 18 is already illegal. However, the blanket ban has raised concerns that it could inadvertently fuel the thriving black market for these products." The Institute for Economic Affairs, a London-based think tank, issued a report in September 2023 detailing how the U.K's overregulation of THR products sold to adults inflates the market for illicit products, often illegally tainted with toxic amounts of nickel and lead, at the expense of users' health.

While Virginia is not enacting a total ban, Virginia's partial ban will nevertheless shift business and resources from the Commonwealth's legitimate vendors to its black-market dealers. Recognizing both the economic and health costs of implementing this legislation, Gov. Youngkin exercised his partial veto power to recommend delaying the legislation's effective date from July 1, 2024 to July 1, 2025, and on April 17, 2024, the General Assembly approved this delay.

Meanwhile, the South Carolina House of Representatives Committee on Judiciary held a hearing on April 17, 2024, on S. 994, which, according to CASAA, "would effectively make the state of South Carolina an enforcement arm of the Food and Drug Administration empowering state authorities to enforce the disastrous federal anti-vaping regulations. This would put hundreds of independent vape shops out of business, hundreds of workers out of jobs, and thousands of people at risk of returning to smoking, or delaying attempts at quitting."

The group added that "S. 994 will close down hundreds of small businesses and put hundreds of workers out of a job." South Carolina does not impose an excise tax on THR products, but an FDA premarket authorization requirement would significantly reduce the number of legal transactions, depriving both state and local coffers of the revenues of South Carolina's 7.43 percent average state and local sales tax.

If alternatives to smoking cigarettes are demonstrably less harmful the government should encourage, not stifle their availability. Given the high cost of treating tobacco-related health problems on Medicare, Medicaid, the American healthcare system, and the economy, policymakers should take action to reduce the incentive to smoke cigarettes by promoting rather than prohibiting THR products.

• tobacco harm reduction; flavor bans; vaping