Boulder moves to 21-year-old age limit for tobacco use, softens on total flavor ban in fight against teen vaping

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Saturday, Aug. 17, 2019

A planned 90-minute decision on tighter vaping regulations turned into a five-hour public hearing and discussion Tuesday night as Boulder’s city council moved toward a higher age limit for tobacco products use but softened on a proposed flavor ban, efforts intended to discourage the area’s high rate of teen vaping. Dozens of concerned parents, students and business owners packed the room to weigh in on the rules and possible taxes on electronic and combustible cigarettes.

No votes were taken or ordinances enacted. Discussion will continue Aug. 20, with a final vote likely Sept. 3.

But some clear direction emerged, including broad community and council support for raising the age limit to 21 for the purchase and use of tobacco products. Council still seemed in favor of a flavor ban for e-cigarette products, though mint and menthol flavors — originally on the chopping block as well — may be available for sale at stores that deny admittance to customers under 21.

Boulder will also move toward a licensing program for sellers of e-cigarettes. Less clear is how it will be funded. Two taxes on tobacco products may be put to voters this November.

A recap of Tuesday’s discussion, by topic.

Tobacco taxes: Cigarettes may get snared in anti-vaping efforts

Council on Tuesday was (almost) prepared to place two taxes on November’s ballot. One would tax “electronic smoking devices,” including “refills, cartridges and components of such devices” at 40% of the sales price. The other would include traditional, combustible cigarettes as well, at $3 per pack.

The measures would not implement the taxes, merely authorize the city to do so if passed by voters. Such taxes have a mixed history of success. All 50 states and at least 440 local municipalities have cigarette taxes, according to the National Institutes of Health. Avon and Aspen passed similar taxes in recent years with 74-75% majorities. (Basalt also passed a tax, but the breakdown of votes was unavailable online.)

But Colorado voters in 2016 rejected Amendment 72 — which would have raised the state’s cigarette tax, among the lowest in the nation. The state shares its revenue from the cigarette tax with municipalities that do not have their own, but numbers from Aspen, Avon and Basalt suggest Boulder could bring in far more cash by taxing tobacco products locally.

Colorado does not tax e-cigarettes. If Boulder enacts a tax on vaping products, it would be the first municipality in the state to do so, according to City Attorney Tom Carr.

Tobacco taxes and revenue

Avon: $3 per pack (combustible cigarettes) 40% of sales price (other tobacco products) $92,175 in revenue in Q1 of 2019

2017 share of state cigarette tax revenue: $38,812.33

Aspen: $3 per pack, increasing by 10 cents per year for 10 years (cigarettes) 40% of sales price (other tobacco products) $463,622 in 2018 revenue

2017 share of state cigarette tax revenue: $63,556.85

Basalt: $2 per pack (cigarettes) 40% of sales price (other tobacco products) Revenue of $175,567.52 in Q2-3 in 2018. The town collected more revenue than voters approved (a requirement of TABOR), so collection has stopped

2017 share of state cigarette tax revenue: $15,676.45

Colorado’s cigarette tax rate: 84 cents per pack

Boulder share of 2018 state cigarette tax: $290,000

There was disagreement among council about whether to place the cigarette tax on the ballot, as the impetus for the issue was concern over teen vaping — not smoking. A tax was proposed because youth are highly cost sensitive. Council had not previously discussed cigarette taxes.

“I’m concerned about (the lack of) process,” Aaron Brockett said. “This was supposed to be about e-cigarettes.”

The vaping industry turned out in force for the meeting, Bob Yates added, but the fact that there wasn’t a similar turnout of cigarette vendors “tells me we didn’t do a good job of letting people know there might be a tobacco tax.”

Brockett said that proper research and outreach should be undertaken before pursuing a  tax on cigarettes. Mary Young called for the tax to be run through the city’s equity filter after testimony that high taxes create black markets for cigarettes. The sellers of bootleg cigarettes tend to be people of color.

Art Way, a Denver-based social justice advocate, reminded council that Eric Garner, killed by NYPD officers in 2014, was initially approached for selling loose cigarettes. New York has the highest tax in the U.S., according to Tax Foundation.

“We’ve heard about vaping as a health issue in the African American community,” he said. “Police brutality is a public health issue, too, in the African American community.”

The arguments for taxing cigarettes mainly centered around cost parity: Make vaping more expensive, and people might switch back to smoking. A major criticism of cigarette taxes nationally has been their regressive nature. Cigarette smokers tend to be poorer; taxing a product they are dependent on further burdens a demographic that can least afford it.

Yet taxes have also proven remarkably  successful in decreasing rates of smoking. The NIH reports that, “on average, a price increase of 10% on a pack of cigarettes reduce(s) demand for cigarettes by about 4% for the general adult population in high-income countries.” A study by Dr. Jidong Huang and Dr. Frank Chaloupka, cited in staff notes, found that a 10% increase in the price of e-cigarettes would reduce sales 12-19%.

There does not appear to be much research comparing the socioeconomics of vape users and smokers, but a 2018 study from the Journal of the American Heart Association found that, like smokers, users of e-cigarettes tend to have lower incomes than that of the general population. Analyzing e-cigarette use from 2013-2014, the report concluded that vaping “was more common among younger people, those with low socioeconomic status, and current and former smokers.”

Councilwoman Cindy Carlisle was the strongest pro-tax voice, arguing that both smoking and vaping are a detriment to public health and should be treated equally.

“Boulder is progressive,” she said. “We should do things that are progressive like recognizing these health issues and taxing them appropriately. … We (should) take the lead rather than allowing another addictive commerce to flourish in the city.”

Mayor Suzanne Jones and councilwoman Mirabai Nagle said they were “split” and “torn” about what to do, citing the lack of process and the desire to “negotiate” with the many resident and businesses opposing the taxes. Several council members noted that a statewide e-cigarette tax would be preferable.

It’s likely lawmakers will consider such a measure during the next legislative session. Governor Polis pushed for an e-cig tax late in the last session. In the event of a statewide tax, Boulder’s could be amended or repealed.

Businesses worried that a Boulder-only tax would force shoppers to change not their smoking habits, but their shopping habits. Eric Grimes, of Lolita’s Market & Deli, said e-cigarette products have, in recent years, come to make up a substantial portion of the shop’s revenue. Liquor stores, too, have increasingly come to rely on e-cigarettes as grocery stores have cut into sales of full-strength beer.

“All these people who are coming into town” — tourists and Boulder’s 63,000 in-commuters — “are going to buy their products elsewhere,” Grimes said. “At that point, what are we doing besides running off revenue?”

Candy and fruit flavors headed for ban, but mint and menthol may be spared

At the start of Tuesday, Boulder seemed poised to do a full flavor ban, including mints and menthols, following in Aspen’s footsteps. The idea follows the logic that the federal government used in 2009 when candy- and fruit-flavored combustible cigarettes were banned nationally under The Federal Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act): Such sweet flavors clearly appeal to children, luring them to products they would otherwise avoid.

“Who wants Unicorn Milk-(flavored vape juice)? It’s gonna be kids,” said Allen Wentworth, director of respiratory therapy at the University of Colorado hospital, who spoke on behalf of the American Lung Association.

Research suggests that a majority of young smokers and vapes started with a flavored product. A May 2017 report in the Journal of Preventive Medicine found that the 2009 flavored cigarette ban led to a 6% reduction in youth smoking.

Elysia Nitsch, an area high school student, testified that “half” her class vapes. In response to a question from Yates, she said the most popular flavors used by her peers are “mint, mango, bubble gum, pina colada.”

“I don’t know how a bubble gum vape is not targeted toward youth,” Nitsch said.

But many testified Tuesday that flavors were part of the attraction to vaping for adults who want to quit smoking cigarettes.

Flavors helped Nicole Nemer quit smoking after 30 years, she said. “I couldn’t do tobacco-flavored anything now. I couldn’t even finish one cigarette today.” (Nemer owns a vape shop in Boulder County that would not be subject to the flavor ban.)

Monica Vondruska, a manufacturer of vape liquids, said her customers prefer non-tobacco flavors because they don’t want to be reminded “of the product that shackled them for decades.”

Most of the public hearing participants who spoke in opposition to tighter regulations were in some way connected to the industry, including the owners of Boulder’s two vape shops. Sales from flavored products are nearly the whole business. Ginger Tanner, owner of Boulder Vapor House, testified that 19% of her sales are from mint or mentholated products and 73% from non-tobacco flavored e-cigarette liquids.

“I didn’t open this store to get kids addicted,” said Sean Tanner, Ginger’s husband and co-owner of Boulder Vapor House. “We don’t sell to minors.”

Council was compelled by the hours of testimony.

“I came into this thinking I wanted to do a full flavor ban,” Nagle said, “but it’s hard to hear” from people who have used them to quit smoking.

A ban on some flavors is evidently needed, Brockett said — it’s where to draw the line that’s tricky. “I don’t think we need bubble gum,” he said, “but cucumber? I don’t know.”

The biggest disagreements centered around mint and menthol products, which are used by vast numbers of adults. Menthol was exempted by the 2009 federal flavored cigarette ban, and use continues to be high in low-income and African American communities in particular, research shows.

As a way of compromise, council suggested a ban on flavored e-cigarette products except mint and menthol. Even then, those flavors could only be obtained at stores that deny access to anyone under 21, which would primarily benefit vape shops and liquor stores over gas stations and convenience stores.

Some members of the public testified that exempting mint and menthol from the ban would defeat the purpose, noting their popularity among young smokers.

“Flavors” — including mint — “play a major role in the high rate of youth use,” said Eric Heydorn, on behalf of the American Cancer Society. Heydorn was one of many health professionals and organization representatives who traveled from outside Boulder to speak in favor of stricter vaping regulations.

There is some research to support the idea that menthol should be banned as well. The same study that found the federal flavor ban cut youth smoking also concluded that a ban on flavored cigarettes increased the use of menthol cigarettes by 45%.

Higher age limit universally supported

Of course, kids may not switch to menthol or mint vapes if they can’t get access to them. That’s the hope of raising the age for use and purchase of tobacco products to 21.

According to the National Survey of Drug Use and Health, 95% of adult daily smokers had their first cigarette before age 21. 2015 report from the Institute of Medicine found that “raising the age for tobacco sales to 21 would have a substantial effect on public health and save lives.” 

To date, 17 states and 500 local jurisdictions have raised smoking age to 21. Nearly everyone who spoke at Tuesday’s city council meeting was in favor of a higher age limit — including dozens of retailers who stand to lose substantial revenue.

Boulder Vapor House’s Ginger Tanner testified that half her customer base is between the ages of 18-21, mainly University of Colorado Students. Still, she supports a higher age limit.

“It’s something we need to do,” she said.

According to an unofficial assessment of speakers by Boulder Beat, roughly 26 were generally in favor of council’s proposals for tighter regulations and taxes on vaping, while 31 were generally opposed. But the vast majority — even among those who did not wish to implement a tax or flavor ban — spoke in support of raising the age limit.

“I applaud that we’ve had a string of retail owners coming down here willing to give up money by raising the age limit to 21,” said Ronnie Robinson, also an e-cigarette retailer. “I never thought I’d see that.”

Should kids pay for underage vaping?

Council was not considering any penalties for underage consumption of tobacco products. But many vaping industry representatives raised the idea during Tuesday’s public hearing.

Sarah Walter, the wife of a vaping industry trade group leader, said that a culture of “participation trophies” has given rise to kids not being held responsible for their actions. Pushing all the responsibility onto the industry punishes law-abiding adults who enjoy cheap, easy access to tobacco products.

“Why should adults have to pay for the actions or in-actions of parents?” she said.

At least one council member, Nagle, seemed interested in pursuing some means of punishment for underage smoking or vaping.

“I don’t want to slap kids with misdemeanors,” she said, “but at some age, you have to learn this is your choice” and there are consequences to your actions.

In response to Nagle’s questions about enforcement, Carr said that, with underage drinking or marijuana use, Boulder typically pursues community service or education for the first three offenses.

“Our goal is to not have someone end up with a criminal record,” Carr said. But with vaping, “this issue is different for me because we don’t deal with such young kids in municipal court.”

Kids as young as 11 and 12 are vaping, school officials, students, parents and health providers testified. “I’m not sure you want them held responsible in the same way” as people over age 18, Carr said.

Council mostly rejected the idea of punishment for underage vaping, as did many who spoke during the public hearing. Naomi Amaha Gollnick, a Denver-based public health community advocate, said penalizing kids is problematic, because children of color are often dinged more frequently and with harsher outcomes than white children.

Eddie Hartnett, Boulder High School’s athletic director, in response to a question from councilwoman Lisa Morzel, said the school has begun to give community service to students caught vaping, or tries to educate them about its impacts. Suspensions are meted out as well.

Morzel then asked if that approach has resulted in behavioral changes. It’s “too early to say,” Hartnett responded, “but probably not.”

“I don’t see us curbing it, because every year our (number of penalties) goes up.”

Passionate testimony from both sides

Though more than half of Tuesday’s 58 speakers had a financial stake in vaping, their defenses of the industry were deeply personal. Their arguments largely centered on the somewhat dubious claim that e-cigarettes are healthier than combustible ones, and that hundreds of their customers have used vaping to quit smoking.

Shawn Hills, a vape shop owner in Boulder County, told the story of a 40-year cigarette smoker who eventually switched to zero-nicotine vaping. She, like many others, insisted that the purpose of and motivation for her business is to help people — not get them addicted.

“If you ask me, ‘Should I vape or smoke?’ I say vape,” Hill said. “If you ask me, ‘Vape or nothing?’ I say nothing.”

Advocates for stricter controls spoke passionately as well. Health professionals described the horrific impacts they see in minors and young adults and said the crisis of teen vaping was like any other.

“I’ve never seen rapid development of addiction to nicotine as what I’m seeing in my office these days,” said Avani Digler, a substance abuse counselor. People have “no idea” how much nicotine they are ingesting, and how quickly. “I literally work with kids who say they cannot function without ingesting nicotine from vaping.”

Parents and siblings, too, shared stories of addiction from within their own families. They challenged the notion that only teens with neglectful parents are susceptible to addiction.

“My husband and I are responsible parents,” said Karen Herz. “Vaping caught us and our medical providers completely by surprise.”

Herz’s family is lucky, she said, because they have the resources to fight their daughter’s addiction. Many don’t. She read a passage from her daughter’s journal on the struggle to remain vape-free after intensive counseling:

“I want to vape bad … It made me forget how stupid and hard (life) is … I feel like it was my main key to friendships and like I have no friends now.”

To view a Twitter thread of Tuesday’s discussion, click here.

— Shay Castle, @shayshinecastle


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