June 2017 Newsletter

San Francisco Takes on Flavored Products, Including Menthol
Tobacco Industry Interference Centers on Organizing Retailers
The Latest in New York’s Local Tobacco Controls
New Tool Available for Tracking Local Tobacco Control Policies in New York State
UPS Must Pay $247 Million for Cigarette Trafficking
Concern—or Lack Thereof—Over Secondhand Exposure to Vapor Product Emissions
Philip Morris Betting on its New Product to Keep Users Using
New York Teens Attend Altria Shareholder Meeting
Tobacco Controls Are Working In New York
FDA Defers Deeming Compliance Dates
New York State Legislature Adds E-Cigarettes to Clean Indoor Air Act
National Data Shows First Decrease in Youth E-Cigarette Use

San Francisco Takes on Flavored Products, Including Menthol

Progressive legislation is a major blow to tobacco industry

San Francisco is taking on one of the tobacco industry’s most consistent products—menthol products. While several jurisdictions have restricted the sale of menthol products (for example, creating a buffer zone around youth centered places or restricting their sale to tobacco specialty shops), San Francisco took it a step further with their proposal to altogether prohibit the sale of all flavored tobacco products, including menthol products and e-liquids, within the city. This is not only a major blow to tobacco companies, whose market growth is mainly realized through menthol products, but also a huge step toward reducing tobacco-related health disparities.

Menthol in cigarettes and other tobacco products masks the harshness of smoke and makes products more appealing. This appeal has significant consequences; menthol cigarette smokers tend to inhale more deeply, and the products are more addictive and harder to quit. While cigarette sales have declined overall, menthol cigarettes are declining at a slower rate; in fact, the proportion of current menthol cigarette smokers increased between 2010 and 2014. Moreover, menthol products are the choice of nearly 90 percent of African American smokers and more than half of all smokers under age 18. Reducing access to the products, and exposure to the ubiquitous marketing for them, may advance health equity by eliminating a major driver of tobacco-related health disparities.

“We’re focusing on flavored products because they are widely considered to be a starter product for future smokers,” said Supervisor Malia Cohen, who sponsored of the legislation. The law is expected to take effect in April of 2018.

Tobacco Industry Interference Centers on Organizing Retailers

T.O.T.A.L. website highlights local regulatory action, continues to offer misleading arguments

In October, the Policy Center published a compilation of fact sheets responding to misleading industry claims about effective public health policy interventions, and aiming to equip public health advocates to refute industry misinformation. These counterarguments were developed in response to resources published by the National Association of Tobacco Outlets (NATO) and Swedish Match on a new website they call T.O.T.A.L (Tobacco Ordinances—Take Another Look).

Since then, the industry website has been revamped with new claims about local tobacco controls and calls to oppose them. Specifically, the website highlights local regulatory action, including Belmont, New York’s consideration of a potential increase to the minimum legal sales age, a public health policy with the potential to prevent and delay youth smoking initiation. The website also encourages retailers to post flyers in their stores and write letters in opposition to local tobacco controls.

Consult our previous publication for effective, evidence-based counterarguments, and don’t hesitate to contact the Center about opposition to local tobacco controls in your community.

The Latest in New York’s Local Tobacco Controls

Sullivan County implements tobacco sales regulation, while Tobacco 21 momentum continues

Effective September 1, 2017, young adults must be 21 years old to purchase tobacco in Sullivan County, NY. Furthermore, the new policy will restrict new retailers in the county from selling tobacco products within 1,000 feet of a school. Luis Alvarez, the Legislative Chairman in the county, was instrumental in passing the legislation, motivated by the County’s poor health ranking to implement a policy that would reduce tobacco use and promote health.

The County Health Rankings provide snapshots of county health factors and outcomes across the United States. Tobacco use is a key health factor contributing to a county’s rank because it remains the primary driver of preventable disease and death. In Sullivan County, 18.59 percent of adults were smokers in 2015, which is much higher than the statewide average of 15.00 percent.

Sullivan County joins Cayuga and Ulster counties, as well as several municipalities, in regulating the location of tobacco sales. Additionally, Rockland County recently implemented the state’s first prohibition on pharmacy tobacco sales.

Following Sullivan County’s action, Tompkins County in May became the ninth county in the state (excluding the counties of New York City) to raise the minimum legal sales age to 21 years. Other New York jurisdictions, as well as the state legislature, are considering Tobacco 21 proposals. While the Institute of Medicine recommends raising the minimum legal sales age for tobacco products, such policies will be more effective when adopted as part of a comprehensive tobacco control program, including one that reduces residents’ exposure to tobacco marketing, which drives tobacco use among youth and interferes with quit attempts by established users.

New York City may be the next jurisdiction to upgrade its tobacco sales regulations. The Council Committee on Health came together in May to hear testimony on a package of bills addressing tobacco product sales and use. During the well-attended hearing, residents and tobacco control professionals urged the committee to approve new laws that would reduce the density of tobacco outlets, expand the licensing requirement to include retail outlets for all tobacco products, increase price floors and excise taxes for tobacco products, increase tobacco product retail license fees, restrict smoking in multiunit housing, and regulate hookah bars. Taken together, the legislative package, supported by Mayor DeBlasio, removes any doubt about whether the new administration would support innovative public health interventions. Should the legislation be adopted by the City Council, the city would realize reduced exposure to tobacco marketing and environmental cues to smoke, particularly in those areas most saturated with tobacco outlets. Moreover, the proposals would reduce tobacco use by correcting misperceptions about the normalcy and risk of tobacco use.

For more information about what your community can do to reduce tobacco use and improve public health, contact the Center.

New Tool Available for Tracking Local Tobacco Control Policies in New York State

See our story map to learn more about tobacco control in New York

Many New York counties and municipalities are pursuing evidence-based tobacco sales regulations to reduce the tobacco industry’s influence over the retail environment. In order to provide summary information, local data for background information, and legal citations for recently implemented regulations, the Policy Center has developed an interactive story map, available here.

The map includes county-level estimates of the number of active tobacco retailers and local data from the New York State Expanded Behavioral Risk Factor Surveillance System (BRFSS), which is a telephone survey designed to provide county-level data. Statewide 15.2 percent of New York adults were current smokers in 2015, and there are more than 21,300 active tobacco retailers in New York in 2017. The story map illustrates local tobacco retail licensing requirements and tobacco sales regulations that limit the number, type, and location of tobacco sales outlets, or restrictions on the use of tobacco product price promotions.

We intend to regularly update this map with all point of sale restrictions, local license requirements, and MLSA requirements. Feel free to email any questions or feedback to mailto:tobacco@tobaccopolicycenter.org.

UPS Must Pay $247 Million for Cigarette Trafficking

“Significant award” necessary to deter future bad behavior

A federal judge ordered UPS to pay $165.8 million to New York State and $81.2 million to New York City for knowingly shipping untaxed cigarettes in violation of a private settlement agreement between the company and New York State, as well as New York state and federal law. Illicit cigarette sales undermine the public health benefits of tobacco taxes and circumvent laws designed to keep tobacco products out of the hands of children and adolescents. Thus governments often take a hard line against those who participate in the illicit tobacco market.

For example, in 2005, UPS executed a settlement agreement with the New York State to resolve a state investigation into UPS cigarette shipments to persons who were not licensed cigarette tax agents, wholesalers, or retail dealers in violation of state public health law. Through the agreement, the company agreed not to conduct “business as usual” and to take affirmative steps to ensure the company would not ship untaxed cigarettes in the future.

In June 2011, the state Attorney General again investigated UPS in connection with unlawful cigarette shipments, and demanded payment of a penalty under the terms of the 2005 settlement agreement. During negotiations, New York City in 2013 began its own investigation into cigarettes shipped by UPS to unauthorized persons in the city. The city claims to have obtained records indicating more than 78,000 deliveries to residences (i.e., not authorized recipients) potentially representing millions of packs of untaxed cigarettes delivered between 2010 and 2014. They charged that UPS staff not only ignored the fact that recipient addresses were obviously not tobacco retailers, but also gave cigarette shippers price discounts and allowed drivers to accept gifts from dealers.

By 2015, the parties could not resolve their differences, and the state and city filed suit in February 2015 alleging violations of the 2005 settlement agreement, New York State Public Health Law, New York State Executive Law, the federal Prevent All Cigarette Trafficking (PACT) Act, Contraband Cigarettes Trafficking Act (CCTA) and Racketeer Influenced and Corrupt Organizations Act (RICO) (later dismissed by the court). In March 2017, U.S. District Court Judge Katherine Forrest determined that UPS had in fact violated the agreement and state and federal law. In May, she ordered the company to pay $247 million to the state and city to not only compensate them for unpaid taxes but also penalize them to ensure that UPS would not engage in the same behavior in the future.

UPS officials have indicated they plan to appeal the decision.

­­­­­­­­Concern—or Lack Thereof—Over Secondhand Exposure to Vapor Product Emissions

Study finds adults don’t appreciate the potential harm of e-cigarette emissions to children

While the U.S. Surgeon General has concluded that aerosol emissions from electronic vapor products (e.g., e-cigarettes, tanks and mods) contain harmful or potentially harmful chemicals, a recent study suggests most adults do not appreciate the potential harm of secondhand exposure to those emissions. The authors conclude that more public education is necessary to ensure the public can properly assess the risks of vapor product use, particularly around kids.

Electronic vapor products have rapidly evolved over the last several years, and the science about their potential public health implications is still catching up. However, scientists do know that emissions are not harmless water vapor—aerosol contains not just nicotine, but also other potentially harmful substances such as heavy metals, ultrafine particulate matter, and volatile organic compounds. The aerosol, therefore, is not as safe as clean air (regardless of how it compares to cigarettes’ secondhand smoke).

Children are exposed to these emissions when they are near someone using an electronic vapor product, which often occurs in places where conventional tobacco product use or smoking is not allowed. Additionally, the study noted that children may be more vulnerable to the effects of this exposure given their smaller body weight and developing respiratory systems.

The study concluded that 22 percent of US adults believe that exposure to secondhand aerosol causes a lot of harm to children, 40 percent believe it causes little or only some harm, and 5 percent believe it causes no harm (a third reported they didn’t know). Current cigarette and electronic vapor product users were more likely to report the exposure as causing no harm, little harm, or some harm to children compared to those who have never used the products. The authors identify vapor product marketing as a source of misinformation about the perceived risks of the products, as well as policies that permit vapor product use, even where smoking is prohibited (thus normalizing their use). Policy interventions that regulate vapor product sales and use correct misperceptions of risk, and the authors recommend implementing these interventions in addition to continuing educational campaigns to ensure the public is informed about the potential harmful effects of aerosol emissions.

Philip Morris Betting on its New Product to Keep Users Using

FDA evaluating “modified risk” application for IQOS heated tobacco products

According to its website, Philip Morris claims to be “designing a smoke-free future” and is advancing that mission, in part, through its new heated tobacco product IQOS. The U.S. Food & Drug Administration (FDA) in May began to evaluate the company’s application to market the new device and its component “heat sticks” in the U.S. as “modified risk” products.

Under the Family Smoking Prevention and Tobacco Control Act, tobacco manufacturers must obtain FDA approval before marketing any product as a “modified risk” product—in other words, a tobacco product that may reduce the harm or risk of tobacco-related disease associated with other tobacco products. Philip Morris is the first company to apply for such approval. If the FDA grants it, the company can market the product as less harmful than, or a safer alternative to, conventional tobacco products.

IQOS may not be able to overcome the high bar set by the federal government, however. A recent study of secondhand smoke from heated tobacco products found that the products release some of the same cancer-causing chemicals as conventional combustible products. The study, conducted by the University of Bern in Switzerland, investigated whether these types of products were actually a healthier alternative to combustible products. The authors concluded that while the heated tobacco products may not release smoke, they do release volatile organic compounds, nicotine and other harmful chemicals at similar or higher levels compared to cigarettes.

Dr. Mitchell Katz, the deputy editor of the Journal of the American Medical Association (which published the study results) commented that products like these “threaten the progress that has been made on decreasing the harms of second-hand smoke because existing bans may not apply to these [heated] tobacco products.” While it’s unclear how such products would fit within the current regulatory environment, tobacco control advocates should be mindful of their communities’ definitions of “smoking” and whether or not they include emerging products that may not be “lighted,” “burned,” or “combusted.”

New York Teens Attend Altria Shareholder Meeting

Reality Check members question company’s marketing practices

Members of Reality Check New York joined with teens from No Limits Nebraska to protest Altria, the parent company of U.S. cigarette manufacturer Philip Morris USA. Specifically, the youth groups took issue with the company’s marketing tactics which recruit youth “replacement” users to take the place of consumers who quit or die from the effects of the company’s toxic products. While CEO Martin Barrington claimed to be proud of the company’s success “and how [they] achieved it,” Philip Morris historically has targeted adolescents with its marketing campaigns and product designs. Additionally, the U.S. Surgeon General has determined that evidence clearly demonstrates that current marketing strategies actually cause youth tobacco use initiation.

Reality Check’s goals include exposing “the manipulative and deceptive marketing tactics of the tobacco industry.” Three leaders from the group were able to attend the meeting and question company officials about minimum age laws and steps the company is taking to ensure the company is not profiling low-socioeconomic status communities for targeted marketing. Unsurprisingly, company officials responded that they prefer the minimum sales age to be 18 (nationally) and that the company only markets cigarettes to adults (without acknowledging the company’s shifting marketing tactics based on community demographics).

Ed Sweda of the Public Health Advocacy Institute reported that at the close of the meeting, attendees were directed away from the usual exit, and were instead led through the building to exit out of sight of the protesting teens. Kudos to the leadership shown by Reality Check and No Limits members! Your message was heard loud and clear by the biggest U.S. tobacco manufacturer—so clearly, in fact, that they’d rather their shareholders take no notice of it.

Tobacco Controls Are Working In New York

Significant disparities remain; other tobacco products on the rise

Tobacco use is declining across New York State, according to a recent report by Research Triangle International (RTI) outlining key outcomes and indicators for tobacco control. Overall, the report illustrates significant public health progress, with declining per capita sales of tobacco and decreasing social acceptance of tobacco use representing key achievements.

Yet, there remain significant disparities in New York, with lower-educated groups and those with poor mental health using tobacco at significantly higher rates than the general population. Nationally, 18 percent of adults suffered from mental illness in 2014, and one in three of those with poor mental health continue to smoke.

Furthermore, while cigarette consumption is steadily declining, use of other tobacco products, like cigars, hookah, and e-cigarettes, is on the rise, including among youth. About 6.5 percent of New York adults used e-cigarettes in 2015, while 10.5 percent of high school students were current users of e-cigarettes in 2014. According to the authors of the report, “e-cigarette use may lead to tobacco use, undermine social norms about tobacco, and delay cessation among cigarette smokers.”

New Yorkers understand that evidence-based public health interventions that transform the retail environment are important for maintaining public health achievements and eliminating tobacco-related health disparities. Public support for restricting retail displays, removing tobacco products from pharmacies, and regulating the location and number of stores selling tobacco in a community has significantly increased across the state in recent years. New York local governments can take action on these interventions. Contact the Policy Center for more information on how to implement effective tobacco sales regulations in your community!

FDA Defers Deeming Compliance Dates

Status quo maintained for additional three months

As a result of several lawsuits challenging its final rule deeming all tobacco products to be subject to federal regulation, the U.S. Food and Drug Administration (FDA) announced that it will defer enforcement of certain provisions of the rule. The three month deferral applies to requirements relating to newly deemed products, such as e-cigarettes, cigars, and hookah and pipe tobacco, with a compliance date of May 10, 2017 and later.

For instance, FDA rules require tobacco product manufacturers to register with the FDA and disclose their product lists, ingredients, substances, compounds, and additives; require premarket review of their products; prohibit the use of “light,” “mild,” “low,” or similar descriptors; require products to carry warning labels; and require disclosure of harmful or potentially harmful constituents. The original enforcement dates for these provisions will be pushed back by three months.

While these deferrals will delay federal regulatory decisions based on manufacturers’ submissions, the tobacco product marketplace will remain static. New products continue to be barred from entering the U.S. market without FDA authorization (in effect since August 8, 2016). Likewise, other sales and marketing provisions of the rule already in effect will continue to be enforced by the FDA:

  • Minimum sales age of 18
  • Prohibition on free samples
  • Restriction on vending machine sales
  • Prohibition on misleading statements about products
  • Prohibition (unless FDA authorized) on the marketing of “modified risk” products (e.g., no alluding that a product is “lower risk,” “less harmful,” or has reduced substance levels).

Federal rulemaking and implementation is a slow, politically charged process; until the process is completed, tobacco companies are selling and marketing nicotine products without oversight. It is imperative that state and local governments exercise their authority to regulate the sale and promotion of all tobacco products, including those newly deemed to fall under FDA’s authority.

New York State Legislature Adds E-Cigarettes to Clean Indoor Air Act

Bill is expected to be signed by Governor Cuomo

On Tuesday, June 20, 2017, the New York State Assembly voted 85-34 to include e-cigarettes in the state Clean Indoor Air Act (CIAA). If signed by Governor Cuomo, the law will prohibit e-cigarette use in all areas in which smoking is currently prohibited in New York. The CIAA covers workplaces, bars, restaurants, mass transit, and schools, hospital grounds, and playgrounds, among other areas, but exempts certain indoor areas, including private homes and vehicles, hotels, and retail tobacco businesses.

Public health leaders expect Governor Cuomo to sign the bill. The Governor had earlier this year proposed adding e-cigarettes to the CIAA in his budget proposal, but the amendment was not included in the final budget approved by the legislature. Governor Cuomo had also sought to impose a tax on e-liquids at a rate of 10 cents per fluid milliliter, a provision which also failed to make it into the final budget.

While including e-cigarettes in the CIAA is a major step forward for leveling the playing field among all tobacco products in New York State, there remain regulatory gaps that can be filled by local governments. For instance, local regulation of the sales of e-cigarettes and/or require e-cigarette retailers (vape shops) to obtain a local license give communities more control over these products and their impact on public health. Contact the Center to learn more about effective local interventions to reduce tobacco use.

National Data Shows First Decrease in Youth E-Cigarette Use

Youth e-cigarette use may still be rising in New York State

In a recent report by the Centers for Disease Control and Prevention, researchers observed the first decline in e-cigarette use among youth since they began asking about it more than six years ago. E-cigarette use among high schoolers fell from 16.0 percent in 2015 to 11.3 percent in 2016, while e-cigarette use among middle schoolers fell from 5.3 percent to 4.3 percent. The authors reported a combined 2.18 million youth users of e-cigarettes in 2016. Overall, there are 3.9 million youth using tobacco products of any kind.

However, New York State data has not yet shown any decrease in youth e-cigarette use. In fact, the NYS Youth Tobacco Survey revealed that e-cigarette use doubled among high schoolers between 2014 and 2016, rising from 10.5 percent to 20.6 percent. E-cigarette use is now more common among New York youth than use of cigarettes, cigars, smokeless tobacco, and hookah. “These startling numbers demonstrate both the overwhelming success of New York’s anti-smoking programs – which have led to record ‎low teen cigarette use – and the need to close dangerous loopholes that leave e-cigarettes unregulated,” Governor Cuomo said in a statement in March.

It remains to be seen whether the upward trend in e-cigarette use among youth is indeed beginning to reverse, or whether the FDA’s minimal regulation of e-cigarettes has affected youth e-cigarette use. In the meantime, local governments can fill the regulatory gaps by including e-cigarettes in new and existing tobacco controls, in order to prevent youth from using these and other tobacco products.