A federal rule that takes effect next month, restricting sales of some flavored vaping products, is so limited it’s toothless and likely won’t affect the vaping industry, public health officials told the Board of Commissioners Jan. 23 during a presentation on flavored tobacco and nicotine products.
Proposed state legislation on flavored tobacco sales would go further to keep youth from vaping, health officials said. It would nonetheless continue to allow sales of menthol flavors — failing to close a loophole that has perpetuated damning health disparities in communities of color.
The presentation was the latest in a series of briefings by public health experts on the effects of vaping and flavored tobacco products. Those briefings also come alongside recommendations by the Health Department on curbing youth access, as well as exhaustive public hearings in front of the Board where parents, doctors, faith leaders, state agencies and the nation’s leading health associations urged limits on the sale of flavored vaping and tobacco products in Multnomah County.
Thursday’s presentation focused on federal action and proposed legislation state lawmakers could consider in their 35-day legislative session starting in February. It also allowed commissioners to consider where the County might step in with local regulations.
The FDA and Salem
The federal Food and Drug Administration published enforcement priorities Jan. 2 that take effect next month, banning the sale of closed cartridge e-liquids with candy and fruit flavors, but exempting mint- or menthol-flavored liquids.
Closed-system cartridges, like those sold by Juul, are not refillable. But Juul, the leading brand for young e-cigarette users, will not be affected by the rule change. Juul stopped selling flavored liquids other than menthol last fall. Mango used to be a favorite among Juul’s youngest users, Tobacco Control and Prevention supervisor Kari McFarlan explained. But after Juul pulled its fruit and candy flavors, menthol jumped to the lead.
“This flavor pod would be allowable under the new standards,” McFarlan told the Board, holding up a tiny menthol Juul cartridge.
Beyond that, McFarlan said, fruit and candy flavors live on in refillable, Juul-compatible cartridges made by third-party producers. The federal rule won’t affect sales of those open cartridges that allow customers to mix liquids and make up a sizable percent of industry sales.
That means vape shops won’t see much of a change. It also means youth can still vape mango-flavor cartridges with their Juul, McFarlan said, holding up another cartridge for the board to see.
“This is not made by Juul. It’s a Juul-compatible pod,” she said. “Someone stepped in to make a replacement pod to keep kids happy with their mango fix.”
Finally, the federal rule fails to address flavored cigars and cigarillos, or menthol cigarettes, all of which are popular among young smokers — and particularly young black smokers.
“We can't count on the federal government to clean up tobacco in Multnomah County,” McFarlan said.
Public Health Director Rachael Banks also said there’s no evidence the rule change will translate to meaningful federal enforcement. In recent years the Food and Drug Administration has done little more than issue warning letters to companies that break the law.
“We have seen the FDA be extremely slow, and products can take a year or more to be taken off the market,” Banks said. “The FDA action is weak and short-sighted, especially in addressing menthol and the range of products youth would still have access to.”
Banks pointed to data suggesting youth have already begun migrating from fruit and candy flavors to mint and menthol. In the most recent federal survey of youth smokers, nearly 60 percent of kids who vape use mint or menthol, up from about 16 percent just three years ago.
“If any flavors are left, youth will shift to those flavors,” Banks said.
Meanwhile Oregon lawmakers could be asked to consider two bills meant to curb youth vaping. One proposal, Legislative Concept 52, would make it illegal to buy and sell e-cigarettes over the internet. The other, Legislative Concept 232, would ban the sale of all flavored e-liquids in the state. Neither draft currently restricts sales of flavored tobacco such as menthol cigarettes.
Commissioners asked public health officials to address three common arguments industry representatives presented during public hearings last fall:
That any action by the County would spur a black market
That commissioners should instead focus on an education campaign
That if the county passes a sales restriction, it should exempt businesses that only serve people ages 21 and older
“The black market argument is misleading,” Public Health Director Banks told the Board, “E-cigarettes as an industry are not regulated… No government agency has tested these products.”
And education alone? “We hear a lot about education,” she said. “It’s a necessary component, but it’s not sufficient.”
The tobacco industry spends more than $100 million a year marketing products to Oregonians, Banks said. That’s more than 11 times what the state spends on its entire tobacco prevention and education program to help people quit, support local anti-tobacco programs, and create counter-marketing campaigns that run for less than six months every year.
“Even the most dedicated education campaign can't stand up to this targeted marketing,” she said.
But what about the argument that the Board should exempt adult-only businesses such as vape shops, smoke shops and bars in any local ban?
McFarlan, the Tobacco Control and Prevention supervisor, remembered when her team first launched inspections to enforce the state’s new over-21 minimum legal sales age law. At first, they didn’t prioritize those businesses.
But enforcement data, in a surprise for the inspection teams, made clear that decision was a mistake. Adult-only businesses were more likely to sell to minors, not less. The overall violation rate in the County is 16 percent — compared to 27 percent for adult-only businesses.
“We had put these lower on the priority list because we thought they would be less likely to sell tobacco to minors because of the very fact that minors shouldn’t be allowed on the premises,” she explained.
Banks laid out the Board’s options moving forward:
Urge the FDA to take bolder action to protect youth.
Support state legislation to curb access to flavored vaping products and online sales.
Work with state legislators to ensure that any law passed in Salem doesn’t preempt Multnomah County from stronger action.
Pass a County ordinance restricting the sale of flavored nicotine and tobacco products.
“On the local level, we have made progress at reducing smoking rates, but we have failed to keep up with the e-cigarette increase,” Banks said. “We have seen we can’t depend on retailers to regulate themselves and we know you have the unique authority to protect the health of the public. The community relies on that authority in your role as the Board of Health.”
Chair Deborah Kafoury recommended the County send a letter to the Food and Drug Administration demanding stronger federal action on flavors. Locally, she said, the advocates who urged Multnomah County to pass a flavor sales ordinance have gotten their message across.
“There is a lot of evidence to persuade us to move in this direction,” she said. “I appreciate we have had this conversation.”
Commissioner Susheela Jayapal said she was grateful for the months of hearings and public testimony, particularly for the opportunity to hear industry concerns, and weigh those against research into public health risks.
“It has become clearer and clearer to me that we need to move toward this flavor restriction. It has become clearer to me that we have to include menthol,” she said. “I do believe we’re in a position to take a leadership role here. It’s the right thing to do and the right time to do it.”
Death inspires calls for local action
Doctors and African American leaders turned out Thursday to ask the Board during the meeting’s weekly public comment period for local action on flavored nicotine products.
“As a lung doctor, every day I have to tell people they are dying from lung cancer. It's a scary disease that doesn’t show up until it's too late in a majority of patients,” said Dr. Maxine Dexter, a Kaiser Permanente pulmonologist and a member of the Oregon Thoracic Society. Two years ago a 22-year-old came to her, already with advanced lung disease. They tried a costly intervention, but he died nonetheless.
“A 22-year-old died,” she told the Board. “That turned out to be an early case of vaping-related lung injury.… I believe this is an issue we need leadership on.”
Harry Jensen, a local standup comedian, 22, held up his Juul. “I bought it to quit smoking,” he said. “I bought into the advertising that this will help you quit smoking. Now I can say there’s more nicotine in my system than ever before.”
Christopher Friend, from the American Cancer Society, quoted Brian King of the federal Centers for Disease Control and Prevention, who said tobacco advertising “will bring a horse to water, the flavors will get them to drink, and the nicotine will keep them coming back for more.”
“Help protect the communities that have been left behind,” he said. “Multnomah County has been a leader across the state. You can lead our state with a cohesive flavor restriction. Clearly the recent policy doesn’t go far enough. Please don’t miss this opportunity to save lives.”
Christina Bodamer, from the American Heart Association, said the federal government has long failed to protect vulnerable residents from dangerous nicotine products. The 2009 Family Smoking Prevention and Tobacco Control Act omitted menthol tobacco and flavored cigars from its ban on tobacco flavoring.
So while smoking rates dropped for White residents in the following decade, she explained, “they left communities of color vulnerable to heavy marketing of menthol brands.”
“Since then, tobacco companies have created an entire new flavor-based market,” she said. “We’re asking the commission to take action to continue our fight against this deadly industry.”
Kools aren’t cool
African American leaders joined public health advocates in asking the Board to pass a comprehensive sales restriction that includes menthol cigarettes.
Clifford Chappell, pastor of the St. Johns All Nations Church of God in Christ, said he supports Board action. “I was the smoker of the Kool menthol cigarette,” he said. He was in the military and smoked a pack a day until a nagging cough, shortness of breath and advice from a mentor pushed him to quit.
“I see how many of my loved ones, family members, friends are in their graves behind smoking. I see what that has done, then I see what vaping is doing to our young people,” he said. “As a pastor I would rather go to a sporting event vs. going to a hospital or worse yet, a funeral home.”
Michael “Chappie” Grice, a longtime teacher and board member for the National Council on Educating Black Children, said menthol cigarettes have saturated the market in black communities for decades, back to the days when smoking was still considered cool, with its smoke rings and fancy lighters. At the night clubs, he recalled, “every button on the cigarette machine gave you a pack of Kools.”
“You didn't smoke anything else,” he said.
The Rev. E.D. Mondainé, president of the Portland chapter of the NAACP, murmured in agreement as pastor Chappell spoke.
“You weren’t cool unless you smoked Kools,” he said later. He said it’s no accident that Big Tobacco targeted African American people for addiction and death with brands such as R.J. Reynolds’ Newport line of cigarettes. Mondainé quoted David Goerlitz, the one-time “Winston Man” of R.J. Reynolds, who recalled a company executive saying, “We don't smoke that shit. We just sell it. We reserve the right to smoke for the young, the poor, the black and the stupid.”
For decades tobacco companies have targeted minority communities with intense advertising and promotional efforts. Consider research that shows that 88.5 percent of Black smokers 12 or older prefer menthol cigarettes, compared to 29 percent of white smokers.
Robyn Stowers, a board member of the grassroots community organization Beyond Black CDC, said Big Tobacco continues to elbow its way into the debate, even in this current discussion in Multnomah County.
“The tobacco public hearings have demonstrated that Multnomah County residents overwhelmingly support the flavor ban,” she said. “However, the hearings also revealed a disturbing trend of external tobacco lobbyists influencing local legislation, including a national Philip Morris campaign that links directly to Multnomah County’s online tobacco feedback form.”
Stowers implored commissioners to put public health first and consider the historic racist policy they’re trying to correct. Four hundred years of slavery, segregation, Jim Crow laws and drug wars have left Black communities sicker and poorer than other residents, Stowers said.
She said those same communities have to hold institutions and their elected leaders accountable for racist policies that continue today. Stowers said that’s why the grassroots group wants the Board to adopt a comprehensive local restriction on the sale of all flavored tobacco and nicotine products.
“You know menthol products disproportionately impact Black communities and youth. You have the data, you heard the stories, now it is time to act,” she said. “Don’t let the voices of the rich and powerful drown out the voices of the communities that you were elected to serve.”
Commissioner Sharon Meieran called Thursday’s testimony “powerful.”
“This is about public health and equity,” she said. “We often hear the flip side, that taking away menthol is going to be inequitable. But that’s what Big Tobacco wants us to think.”
Rather, she said, it’s the tobacco and nicotine companies that have targeted communities of color, poor communities and queer communities — and hooked people on a drug that kills people while paying lobbyists to argue that denying nicotine to those they’ve disparately addicted is a form of discrimination instead.
“Taking action on this is a true step towards improving health disparities and that is something that truly addresses racial inequity,” she said. “I think we need to do something at the local level.”