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MT - Stop the Health Department Flavor Ban
Action Alert

(Update - 07.13.20)

The Montana Department of Public Health and Human Services (DPHHS) has hit a procedural snag in its effort to ban the sale of vapor products in flavors other than tobacco.

On July 2, the Economic Affairs Interim Committee (EAIC) sent a letter to DPHHS director, Sheila Hogan, objecting to the department's proposed rule. The committee asserts that the rule was not introduced according to state laws regarding regulatory authority and new regulations.

At this time, the proposed rule has been taken down from the state’s website and the public hearing previously scheduled for this Thursday, July 16, is no longer on the calendar.

 

We will update this alert as more information becomes available.

 

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(Original Post - 06.24.20)

The Montana Department of Public Health and Humans Services (DPHHS) is moving forward with a proposal that would ban the sale of vapor products in flavors other than tobacco (with a notable exception for “marijuana infused product").


A Public Hearing is scheduled for

July 16, 2020
3:00 PM
Remote Conferencing

(Zoom and Call-in Information, Here)

 

Written comments are being accepted until July 24, 5:00 PM and may be submitted to:

Heidi Clark
Department of Public Health and Human Services, Office of Legal Affairs
mail: P.O. Box 4210
Helena, Montana 59604-4210
fax: (406) 444-9744
email: dphhslegal@mt.gov


The Montana DPHHS is narrowly focused on protecting youth from the temptation to use nicotine. While most free-thinking adults share the opinion that sales of substances like nicotine, alcohol, and other drugs should only be allowed for adults, the flavor ban proposal from the MT DPHHS goes beyond reasonable regulations by taking these low-risk products away from everyone.

Suggested Talking Points for Your Comment

  • Share your story about switching to low-risk, smoke-free alternatives like vapor products.
    • Include how long you smoked, when you switched/quit, and note any changes in your health after switching.
    • Note the role, if any, that flavors other than tobacco played in your transition away from smoking.
  • Let the DPHHS know that you are opposed to banning smoke-free products in flavors other than tobacco.
    • Note any experience you have with using tobacco flavored vapor products (i.e. do you like the flavor, does it trigger cravings for the real thing?)
Please take this opportunity
to express opposition to the DPHHS proposal.
 

Analysis
The DPHHS is making several unsubstantiated and false claims to justify banning flavors.

First, DPHHS asserts that banning flavored low-risk vapor products is necessary because other efforts at regulating the products have failed to stop the increase in youth use. Other points made in the DPHHS’s proposal include a true-but-misleading observation that youth who use vapor products tend to also use other tobacco products. The implication from the DPHHS is that vaping is a gateway to other tobacco products. In reality, it is well known that people who use any tobacco products are more likely to use another. There is no clear link between starting with one type of tobacco and then “graduating” to a more risky product. In short, this argument is both misleading and false.

Second, DPHHS assumes that "adult e-cigarette users are likely to switch to tobacco-flavored e-cigarettes if they are the only product on the market." There is absolutely no research that supports this assumption. In fact, surveys and testimonials of people who switch completely to vaping from smoking show that many find that flavors other than tobacco are a strong factor in preventing relapse to smoking. At the same time, many people report that tobacco flavors are an unsatisfying facsimile and that using them may trigger cravings for real cigarettes.

Third, DPHHS attempts to rewrite history with the claim that "until e-cigarette manufacturer Juul entered the market and pushed the market to its flavored products, tobacco flavored e-cigarettes were the single most widely used flavor." A variety of non-tobacco e-liquid flavors have been widely available on the market since 2009, long before JUUL was introduced. Tobacco and menthol flavors may have been the predominant flavors in the pre-filled e-cigarettes sold in gas stations and convenience stores pre-JUUL, but the consumer-driven online and vape shop markets demanded non-tobacco flavors and clearly influenced JUUL to offer more variety. DPHHS claims that limiting sales to tobacco flavor will reduce youth use, but also admits that they “saw youth use rates as high as 16% before the emergence of pod devices.” Yet, in 2019, just 12.7% of high school youth in Montana reported frequent/daily e-cigarette use, while past 30 day smoking rates in the same group plummeted from 16.5% in 2011 to 12.1% in 2019. 

The DPHHS also admits that the “department does not collect or have information that would enable it to determine what percentage of e-cigarette sales consist of flavored products.” Without knowing this fact, either currently or historically, it is ridiculous for DPHHS to state that it knows for a fact that tobacco was the most popular flavor before JUUL or that it’s reasonable to assume that adults will simply switch to tobacco flavors when flavors are banned.

Fourth, DPHHS invokes the scary claim that nicotine “can have lasting damaging effects on adolescent brain development.” This is an unproven theory that is based solely on small experiments conducted on lab animals yielding results that may not be generalizable to humans. Generations of adults have lived through decades of much higher smoking rates, yet there is zero evidence that any of those who started smoking as teens (the majority of people who smoke) show any evidence of any kind of “brain damage” or stunted “brain development.”

Fifth, DPHHS falsely claims that 70.3% of youth e-cigarette users say they use e-cigarettes "because they come in flavors I like." This is based on an outdated FDA draft guidance based on a poorly-worded 2016-17 PATH survey. The 2019 National Youth Tobacco Survey found that just 22.3% of youth e-cigarette users stated that they use e-cigarettes because they “are available in flavors, such as mint, candy, fruit, or chocolate.” Over 56% stated they tried them because “I was curious about them.”

Finally, DPHHS points out that it declined to exempt vape shops (in spite of the fact that it is already illegal to sell vapor products to anyone under the age of 21 years old) because “18.9% of high school e-cigarette users got their e-cigarette product from a store such as a convenience store, supermarket, discount store, gas station, or vape shop.” This is very misleading because vape shops are lumped together with retail environments where age verification may not be as diligentBy comparison, violating  minimum sales age laws among vapor shops may only make up a small percentage of overall violations. Indeed, according to the 2019 Montana Youth Behavior Risk Survey only 16.7% of young respondents report acquiring vapor products from any of the retailers listed above. Moreover, vape shops are far more likely to be hyper-vigilant about age verification and following other regulations due to greater scrutiny from officials and the community.
 
 
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