New Jersey characterizing flavors ban

New Jersey is Trying to Ban Flavored E-Liquid: Here’s Why We Need to Stop It

YA bill is poised to crush the vaping industry in New Jersey. The democrat-backed A3704/S298  intends to ban flavored e-liquid or cartridges that use a “characterizing flavor” other than tobacco, menthol and clove, all under the familiar guise of “protecting the children” from the supposedly evil vaping industry.

But there are a few huge, glaring problems with the proposal:

1) It probably won’t have a noticeable effect on youth vaping.

2) It will seriously impact hundreds of small businesses across the state and lead to many jobs lost.

3) It will make switching to vaping less appealing for smokers.

The good news is that it isn’t too late to do something about it. Here’s what you need to know about A3704 and what vapers can do to stop it.  

A3704: What it Says and Where it Stands

The bill itself can be described pretty simply: it extends the existing ban on “characterizing flavors” in combustible cigarettes to vapor products and liquids. This means that any cigalike cartridge or e-liquid sold in New Jersey could only contain tobacco, menthol or clove as a characterizing flavor, subjecting thousands upon thousands of e-liquid flavors to a complete sales ban.

“Characterizing flavor” covers any ingredient which “imparts a distinguishable flavor, taste, or aroma.” This is why cigarette additives and flavorings – of which there are hundreds – are not covered by the existing law, unless the amount added makes the whole cigarette taste of a fruit, herb, spice or pretty much anything else. That’s why it’s a “characterizing” flavor rather than just a flavor; it has to characterize the whole taste, not just be an unidentifiable component.

Anybody who violates the proposed rule would be fined $250 or more for the first violation, $500 or more for the second and $1,000 or more for the third and all subsequent violations.

The bill passed the state Assembly health committee on Monday, in a 7 to 2 vote with 2 abstentions, but it needs to pass additional committees in the Senate and Assembly before Governor Chris Christie can choose to sign it into law or veto it. You can track the bill on Legiscan.

Using Bad Science to Justify Harmful Restrictions

The arguments used to back the proposal are achingly familiar to vaping advocates. Herb Conaway, one of the bill’s sponsors, commented:

“…we’ve seen how nicotine companies carefully market their products to young, impressionable consumers in the hopes of attracting life-long customers. The appeal of electronic smoking devices is just as bad, if not worse, because the products are available in almost every candy-like flavor imaginable.”

The subtle shift from “tobacco companies” to “nicotine companies” tells you everything you need to know about the rationale behind this move. Presenting no evidence and ignoring any potential unintended consequences of the decision, they simply import the same old points and throw in some extra stuff about bubblegum e-liquid to get people riled up.

The bill text makes this obvious, because the arguments used to justify banning characterizing flavorings from deadly cigarettes have literally just had “and flavored electronic smoking devices” crammed into an appropriate place. This means, according to the state Legislature:

  1. E-cigarette flavors are “particularly attractive” to children.
  2. Public health experts say the existence of “these products” (now including vaping products) increases the incidence of tobacco use among children.
  3. Flavored e-cigarettes lead to increased tobacco use and addiction, with all the consequences that entails.
  4. Therefore, flavored e-liquids “pose a significant threat to the health of the general public.”

This incredible line of reasoning has one major downfall: none of it is supported by evidence. The narrative is familiar, but each link in the chain of reasoning falls to pieces under the slightest scrutiny:

  1. Youth who vape may like e-cigarette flavors, but the idea they’re “particularly attractive” to children – compared to the intended market of adult smokers – is tenuous at best.
  2. Combustible cigarette use amongst children and teens has fallen dramatically since vaping came onto the scene.
  3. The same again, but it’s also worth noting that most youth vapers don’t use nicotine, and the ones who don’t smoke only vape rarely.
  4. For the “general public,” groups like the Royal College of Physicians have looked at all of the evidence and concluded that e-cigarettes are unlikely to pose more than 5% of the risk of combustible tobacco, flavored or not.

But we’re not exactly holding our breath for politicians to be deterred by facts.

How it Would Crush New Jersey’s Vape Stores

The vape stores of New Jersey are one of two groups who would be seriously affected by this legislation. Some may be able to survive by restricting themselves to hardware, but e-liquid is the thing vapers need to buy the most often and is a huge financial lifeline for vape stores.

To understand why, you just need to look at the expenses for a vaper. After buying the base hardware (a mod or vape pen and a tank or two), the running costs are coils and e-liquid. A pack of five coils costs less than $15 – so $3 per coil – and each coil will last you two weeks or possibly even longer. At a juice consumption of about 5 ml per day, after two weeks you’d have consumed about 70 ml of e-liquid, priced at anywhere between $10 and $30 per 30 ml bottle. For 60 ml at an average price of $20 per 30 ml, this would equate to $40.

In other words, vapers will spend about 13 times more on e-juice than on coils, and that makes e-juice absolutely essential to any vape store.

You may protest that vape stores will simply sell tobacco, menthol and clove e-liquids and probably take in the same amount of money. But with no flavor bans in other states, what’s to stop a vaper from simply ordering his or her flavored e-juice online? Will New Jersey really be able to stop this from happening? What’s to stop an enterprising vaper from hopping over to New York or Philadelphia to stock up on flavored e-juice? Are they planning to search people at the state line?

The idea that flavored e-liquid will be effectively removed from New Jersey is basically absurd. But even if it wasn’t, would vape stores survive then? No, because the legislation will affect other people too…

How a Flavor Ban Would Negatively Affect the Smokers and Vapers of New Jersey

Adults like flavors too. It’s hardly breaking news, I know, but apparently this hasn’t occurred to the sponsors and supporters of A3704.

People don’t seem to understand why the vast majority of vapers class the range of flavors e-liquids are available in as “very important” for their ability to quit smoking and stay smoke-free. It shouldn’t be the sort of thing you have to explain, but a consumable product that comes in a wide selection of delicious flavors is preferable to one that only comes in a handful of not-that-exciting ones.

This is one of the major benefits of vaping compared to smoking. There are many vapers and just-switching smokers who enjoy tobacco flavors – particularly NET blends like ours – but there are a lot of vapers and smokers who usually go for the sort of sweet, fruity flavors that are subject to this impending ban.

This is something vaping offers that cigarettes simply can’t offer. Without the pungent, overpowering smoke to compete with them, the flavors really shine when you vape. Like the reduced cost of vaping, this is one of the factors that really appeals to adult smokers hoping to switch. Not to leave a stone unturned, another bill in the legislature would reduce the cost advantage too, by preventing vaping retailers from offering coupons or discounts on their products.

If New Jersey is successful in banning characterizing flavors and does choose to effectively increase the cost of vaping with the other bill, the end result would be fewer smokers switching to vaping and even – potentially – some vapers tossing their mods and going back to smoking. Vape store owners would see their consumer-base shrink along with their selection of products for sale.

Why A3704 Won’t Protect Children from Vaping

It is true that youth who vape usually like the flavors. But you’d assume that if they didn’t like the taste, they wouldn’t vape. What really matters isn’t whether youths like the flavors (because who doesn’t like the taste of strawberry milkshake?), it’s whether youths only vape because of the flavors. The issue is whether banning flavors will have any impact on youth vaping at all, and we have data that can inform our discussion of the issue.

One study in particular conveys an important point. This found that, when presented with yes-or-no choice, about four out of five youths who vaped said they liked the flavors. This is exactly the sort of result legislators like those in New Jersey use. But the same study also found that about four out of five say they vape because it’s less harmful than smoking cigarettes. And the same proportion (within confidence intervals, at least) said they vaped because it’s probably less harmful to people around them.

The take-away message is that there are many reasons youths vape. Youth vapers in the study also acknowledged many others, such as “to quit smoking cigarettes.” Flavors are just one of them. Given that almost all regular youth vapers also smoke cigarettes, do Herb Conaway and the bill’s other sponsors really think that banning flavors will stop youth vaping, despite having no impact on other – clearly more important – health-related reasons to vape? They seem to expect youth smokers to say, “Well, I think vaping is less likely to kill me than smoking, but if I don’t have my bubblegum e-liquid I’ll take the cancer, thank you very much!”

And even for the vapers who really are in it for the “fun” rather than the health reasons, is flavor the only thing driving the decision? Are we so sure that they don’t like the clouds? That they don’t want to enjoy an adult-like behavior and express their independence? That they aren’t also vaping so they can blow cool rings and do tricks?

With all these points in mind, it’s far from inevitable that experimenting teenagers are going to be deterred by arbitrary restrictions on e-liquid flavors. In fact, there’s every reason to expect that youth vaping will continue just as it did before the ban.

Why We Need to Stop A3704

A3704 is about to make it more difficult for New Jersey’s smokers to quit and will almost certainly put honest, hardworking people out of business. And for all the tough talk and bluster, it’ll probably do little-to-nothing to tackle the problem of youth vaping. But if you want consumer choice, the right to enjoy smoke-free nicotine products and reason to prevail, you can’t leave it to the legislators to sort out on their own: you have to get involved and make a difference.

Take Action

Vapers and store owners in New Jersey don’t have much time to act, but it isn’t too late.

If you’re a vaper, contact your local representative (who you can find here) and voice your opposition to this bill. If vaping helped you quit smoking, explain what role flavors played for you and how this change would impact on other smokers like you hoping to switch to vaping.

If you own a vape store, Gregory Conley from the American Vaping Association is encouraging you to contact your Assembly members and your Senator to explain how these rules would impact your business and likely leave your employees out of a job.

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