The debate in Washington about how to address vaping intensified last spring when Food and Drug Administration Commissioner Scott Gottlieb resigned. Gottlieb was known for having an aggressive regulatory posture against vaping, and his resignation was seen as a response to political pressure applied by Republicans in Congress and grassroots conservatives angered by his anti-vaping proposals.
The administration became more hawkish on vaping after the emergence last summer of thousands of cases of lung illnesses, with dozens of deaths, where vaping was a factor. The president announced a proposal to ban vaping products in September, which immediately caused consternation among his political base. Critics of the proposed ban claimed an unnecessary “vape hysteria” was perpetuated in the media. They argued that outlawing vaping and vape products would have the unintended consequences typical of black markets created by government prohibition. A legislative proposal to strengthen age restrictions did not create the same backlash.
In December, President Donald Trump signed into law a bill setting a national minimum age to purchase tobacco or e-cigarettes at 21. This was perhaps the most significant tobacco control achievement of the decade. This followed statewide legislation signed by Gov. Greg Abbott in June. San Antonio led the way for Texas, as the City Council voted by a wide majority to adopt the first “Tobacco 21” ordinance in the state in 2017.
The Trump administration also announced on Jan. 1 a ban on nearly all flavors, except menthol and tobacco flavors, of disposable e-cigarette cartridges generally sold in convenience stores and favored by teenagers. This ban only impacts the disposable e-cigarette liquid cartridges that are sealed at the manufacturer level and are nonrefillable. The sale of all flavors of “open system” pods — cartridges that can be refilled by users with their choice of e-cigarette liquid — is still permitted. The policy was widely seen as a split-the-difference half-measure, which is an approach consistent with decades of tobacco control policies.
The most alarming vaping trend in recent years has been the rapid acceleration in youth vaping after Juul entered the market in 2015. Juul released its signature product, which resembles a sleek USB drive, with an aggressive social media marketing campaign. The company has been accused of targeting teenagers. Altria, the maker of Marlboro cigarettes, made a $13 billion “strategic investment” in Juul two years ago. Addiction is clearly a sustainable business model.
The steady decline in youth smoking since the mid-1990s is a public health victory attributable to changing social norms, muscular government policy and aggressive public information campaigns. Self-reported high school tobacco use declined from 15.8 percent to 5.8 percent in the last decade. The large decline in smoking was more than offset by a surge in high school vaping, from 1.5 percent to 27.5 percent, over the same time period. More than five million teenagers reported vaping in 2019. Those who develop a dependence on nicotine as teenagers will find it more difficult to quit as they age, and there is evidence that some young people who never previously smoked have transitioned from vaping to traditional cigarettes.
Public awareness about various forms of chemical dependency has increased. There has been a renewed focus on evidence-based substance abuse prevention education. Sen. John Cornyn recently announced a $1.25 million federal grant focused on youth substance abuse prevention. The state will also play an important role. The Texas Legislature last year considered and rejected HB 4103, a bipartisan bill that proposed an excise tax on e-cigarette products. Similar excise taxes proved successful deterrents in other contexts, and HB 4103 would have eventually raised $20 million annually. The Legislature should consider levying such a tax again next year and dedicate the revenue to prevention efforts.
Smoking rates continue their decades-long decline due in large part to public education and changing social norms. Vaping rates continue to increase dramatically, especially among teens. The Trump administration’s vaping policy coupled with a national Tobacco 21 law is a step in the right direction. We need to build upon this momentum.
T.J. Mayes is a San Antonio-based attorney and community volunteer.