The Policy Center is closely following developments and will update this page to reflect the rule’s latest status. Meanwhile, we are happy to answer your questions about recent executive actions and relevant challenges.
January 14, 2020 Update: Judge Strikes down New York Emergency Rules Restricting Sale of Flavored E-cigarettes
The court granted Vapor Technology Association and other requesting parties the preliminary injunction they sought, thus stopping the state’s emergency rule from taking effect.
In issuing its ruling, the Court found the state’s Public Health and Health Planning Council exceeded its regulatory authority with a rule that considered “economic and social concerns” and made other policy decisions. The court explained that these policy decisions must be left exclusively to state legislative bodies, whereas agency regulations generally ought to “merely fill in the details” of a legislative directive. More specifically, the court cited the emergency rule’s exemptions for sales of tobacco and menthol flavored e-cigarettes as impermissible policy considerations; exempting these flavors does not support the harm reduction that the emergency rule attempts to prevent (i.e., vaping-related lung illnesses), but rather attempts to alleviate economic loss to businesses and opposition from e-cigarette users.
In reaching its decision, the court relied on the 1987 tobacco control case Boreali v. Axelrod that set the precedent in New York for narrowly interpreting the regulatory authority of agencies. Boreali struck down the Council’s regulation restricting tobacco use in public areas; state legislature responded in 1989 by passing smoke-free laws similar to those stricken.
As of January 14, 2020, the Governor’s office is reviewing the decision and deciding on next steps, which could include an appeal. Meanwhile Governor Cuomo and state lawmakers are pressing for legislation that would achieve the same result.
January 2, 2020 Update: Proposed Rule to Permanently Prohibit Sale of Flavored E-liquids; Governor’s Budget Proposals
The New York State Department of Health filed a proposed rule to permanently prohibit the sale of flavored e-liquids (including menthol-flavored products) in New York State. Public comments may be submitted during a 60-day period, ending February 29, 2020.
Separately, Governor Cuomo announced that his office will put forth legislation to prohibit the sale of flavored e-cigarettes and authorize the Department of Health to regulate chemicals in vapor products that may be harmful to health. The legislation would also restrict the sale of e-cigarettes to registered retailers by limiting sales that occur online or over the phone, and would restrict vapor product marketing that targets youth and/or makes unapproved product safety or smoking cessation claims.
December 12, 2019 Update: Council Extends Emergency Rules Restricting Sale of Flavored E-cigarettes, Adopts Permanent Signage Rules, While Regulators Require Insurers to Cover Vaping Cessation
New York’s Public Health and Health Planning Council (PHHPC) voted to make permanent the Health Department’s emergency rules requiring vapor product retailers to post warnings about e-cigarette use. The signage has been posted by retailers since emergency rules became effective in September 2019, and the Health Department is working to make the PSA available in more languages.
At the December PHHPC meeting, members of the public and of the Council also discussed the emergency regulations temporarily halting sales of flavored vapor products, which were set to expire on December 15, 2019. PHHPC extended the emergency rules by another 90 days, so they could become effective if litigation is resolved (but subsequently, the emergency rule was struck down in court).
Separately, the state’s Department of Financial Services will require healthcare insurers to cover vaping cessation costs without co-pays, coinsurance or deductibles.
October 3, 2019 Update: Enforcement of Emergency Rules Delayed by Industry Lawsuit
New York will not begin enforcing emergency rules that would halt sales of most flavored e-cigarettes for at least 90 days. Enforcement was slated to begin October 4, 2019. Vapor Technology Association, an industry trade group, challenged the rule in state court and requested a temporary restraining order while the case is decided on its merits. On Friday, September 27, 2019, the court denied the request. However, the state Supreme Court reversed this decision, and on October 3, 2019, barred the state from enforcing the sales ban on flavored vaping products until the lower court rules on Vapor Technology Association’s motion for a preliminary injunction.
September 26, 2019 Update: New York to Include Menthol-Flavored E-cigarettes in Emergency Rules
After the original emergency rules were approved and took effect on September 17, 2019, New York’s Health Department did not delay in gathering the evidence to strongly recommend that the Governor’s Office extend the emergency rules to include menthol-flavored e-cigarette products. The Governor accepted this recommendation and requested the Health Commissioner to convene a meeting of the state’s Public Health and Health Planning Council (PHHPC) to finalize it as soon as possible.
The Health Commissioner’s recommendation presents new evidence showing that New York youth are increasingly using menthol-flavored e-cigarettes, and nearly half incorrectly believe these products to be less harmful than tobacco-flavored e-cigarettes. These data follow preliminary national data showing that more than three in five high school e-cigarette users used menthol or mint flavors in 2019, up from about two in five in 2017. The Governor also recognized flavors are central to tobacco company marketing—a problem across product categories.
New York State Takes Emergency Executive Action to Pause Sale of Some Flavored E-cigarettes
Emergency action delivers impactful change; menthol recommendation forthcoming
Following a September 15th announcement by New York Governor Cuomo, an advisory council approved for emergency adoption a regulation restricting the retail sale of some flavored e-cigarettes, allowing only menthol or tobacco flavors to be sold in New York. The emergency regulation is immediately effective, providing a grace period before local health departments begin enforcement on Monday, October 7, 2019.
In the span of a week, momentum to restrict the sale of flavored e-cigarettes was given a big boost—first by NY Governor Cuomo, and then by President Trump. Alarmed by preliminary data from the 2019 National Youth Tobacco Survey showing that youth vaping continues its unprecedented acceleration, elected officials are calling for action to address the marketing that hooks young users.
The emergency regulation approved by the New York Public Health and Planning Council:
- prohibits the sale of e-cigarettes and e-liquids in characterizing flavors other than menthol or tobacco flavor
- applies to all e-cigarette retailers
- is a sales restriction and does not impact e-cigarette possession, purchase, or use by individuals
- is effective September 17, 2019, with enforcement beginning October 7, 2019
- precedes the state registration requirement for e-cigarette retailers, which begins December 1, 2019
- remains in effect for 90 days (through December 16, 2019), and is then subject to Council renewal, revision, or rescission.
The regulations were advanced through an emergency process at the direction of the Governor. The Council “Committee on Codes, Regulation, and Legislation” convened a statewide public hearing before unanimously recommending the sales restriction to the full Council. The full Council immediately met and approved the emergency regulation, following statements by individual members, some of whom voiced concern for unintended consequences of the sales restriction, a desire to explore exemptions for retailers employing enhanced age-verification, empathy for the adults who testified to their addiction battles, and concern over the regulation’s exclusion of menthol flavor.
The exclusion of menthol-flavored e-cigarettes from the emergency regulation resulted in prominent national public health groups pulling support for the policy. Health Commissioner Zucker reiterated that the Governor has directed the Council to evaluate including menthol flavor in the regulation, and within 14 days offer a recommendation to the Health Department and Governor’s Office.
Related Executive Action Addressing E-cigarette Marketing and Use
A few days prior to announcing his intention to restrict sales of flavored e-cigarette, Governor Cuomo signed an Executive Order imposing further steps to address the uninterrupted epidemic use of e-cigarette by youth and young adults. Indeed, preliminary data announced by the Governor’s Office show up to 40 percent of New York 12th graders are current e-cigarette users. Nationally, high school e-cigarette use jumped from 21 percent in 2018 to more than 27 percent in 2019. The intervention followed nationwide reports of pulmonary illnesses and death related to e-cigarette use, realizing the worst outcome wrought by lacking government oversight, and by executive order directs the Department of Health to:
- require vapor product retailers to post warnings about e-cigarette use
- the state provides a downloadable image stating “Vaping can expose you to toxic chemicals and kill you!”
- explicitly expand state-mandated youth prevention curriculum to e-cigarettes, beyond the existing requirement for education related to cigarettes and other tobacco products
- this provision will implicate New York Education Law, among others, and likely require collaboration of activities among multiple departments
- launch a PSA campaign about the risks of e-cigarette use
- we hope to soon learn more from the state about the content, scope, and timeline of the campaign
Outside the scope of the Executive Order, the governor announced his intention to advance legislation restricting deceptive marketing for e-cigarettes. This is an important recognition of the critical role marketing plays in driving tobacco use, especially among youth.
The Governor also directed State Police and the Health Department to immediately partner to ramp up enforcement efforts against retailers who sell to underage youth, with the possibility of criminal penalties. Meanwhile, the Health Department launched a vaping hotline as a resource for consumers to report concerns and learn more about e-cigarettes.
In sum, these executive and agency actions attempted to impose a new sales restriction, and did require a retail health warning, enhanced enforcement, a designated media campaign, and expanded health curriculum. As such, they round out the state’s efforts to comprehensively address the epidemic of youth e-cigarette use through complementing existing laws, including product price increases through taxation, policies restricting use, and cessation access.
The Governor’s executive actions have the potential to impact the e-cigarette market and norms around e-cigarette use in the Empire State. Meanwhile, menthol-flavored tobacco products remain heavily marketed in every tobacco product category, as do flavored “other tobacco products,” such as the little cigars increasingly popular among young people. None of these state actions restrict the authority of local New York governments to impose retail policies aimed at curbing tobacco use, including sales restrictions more stringent (and more permanent) than state law.
Reach out to the Policy Center if we can help you navigate relevant implications of the emergency sales regulation or other recent statewide action.