RESTRICTING FLAVORED TOBACCO PRODUCTS TO ADULTONLY RETAIL TOBACCO

RESTRICTING FLAVORED TOBACCO PRODUCTS TO ADULT-ONLY RETAIL TOBACCO STORES – STATUS IN MASSACHUSETTS June 17, 2019

SNAPSHOT OF MUNICIPAL GOVERNMENT IN MA • 351 independent municipalities. • All of whom have the legal authority to enact local public health laws through • Board of Health Regulations • Ordinance or By-Laws • Crazy or Brilliant?

MORE THAN 150 CITIES AND TOWNS – MORE THAN 65% OF COMMONWEALTH’S POPULATION • Courtesy of D. J. Wilson, J. D. • Massachusetts Municipal Association’s Public Health Liasion • June 2009, FDA enacted regulations that prohibited the sale of ALL flavored cigarettes • Based largely on tobacco industry documents.

WHY RESTRICT THE SALE OF FLAVORED TOBACCO PRODUCTS? • Same rationale the FDA used in 2009 when they banned flavored cigarettes. • 59% of high school smokers in Massachusetts have tried flavored tobacco products and 96. 1% of youth who smoked cigars reported smoking cigars that were flavored. (MA Dept. of Public Health 2015 Massachusetts Youth Health Survey; Delneve CD et al. , Tob Control, March 2014: Preference for flavored cigar brands among youth, young adults and adults in the USA. ) • FDA and U. S. Surgeon General both stated that flavored tobacco products are considered to be “starter” products that help establish smoking habits that can lead to long-term addiction. (FDA 2011. Fact Sheet: Flavored Tobacco Products, Preventing Tobacco Use Among Youth and Young Adults: A report of the Surgeon General. )

AGGRESSIVE MARKETING OF FLAVORED TOBACCO PRODUCTS IN RETAIL ENVIRONMENT • The tobacco industry spends more than 96% ($9 billion) of its total marketing budget in convenience stores, gas stations and other non-age restricted retail outlets. (Federal Trade Commission (FTC), Cigarette Report for 2017, 2019). • 2/3 of teenagers visit a convenience store or other neighborhood retailer at least once a week. (Hendrickson, L. et al. , Association of retail tobacco marketing with adolescent smoking, (American Journal of Public Health 94 (12)2081 -3, 2004). • Exposure to tobacco marketing in stores and price discounting increase youth smoking. (HHS, Preventing Tobacco Use Among Youth and Young Adults, A report of the Surgeon General, 2012). • Smart, intentional marketing to youth demonstrated by

BODY OF EVIDENCE REVIEWED BY THE SURGEON GENERAL Cross-sectional studies on exposure to advertising and use of tobacco; Longitudinal studies with non-susceptible, never-users of tobacco and subsequent initiation; Examination of industry marketing efforts and use of specific brands; Evidence from tobacco industry documents on their marketing practices. (U. S. Surgeon General’s Report, 2012).

RE-DEFINE “CHARACTERIZING FLAVOR” • “A distinguishable taste or aroma, other than the taste or aroma of tobacco. . . Including, but not limited to tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy. . . menthol, mint and wintergreen. . . ” • “menthol, mint and wintergreen” language in FDA exemption. • Includes ALL mint flavors. • Endorsed by the NAACP and the Urban League.

WHY? • Same reason FDA banned flavored cigarettes in 2009. • Mint is a flavor – the only flavor left on the market. • Should have been banned in 2009. • Only reason FDA didn’t include it was because of lobbying efforts and ultimate “compromise”. • Even though FDA’s Tobacco Products Scientific Advisory Committee (TPSAC) concluded that “Removal of menthol cigarettes from the marketplace would benefit public health. . . ” • Industry has effectively been able to sell a flavored product (mint) for 10 years, even though the same arguments apply to apple that apply to mint. • In fact, more compelling arguments apply to mint, than to apple.

MORE COMPELLING ARGUMENTS • It’s not just a flavor. • Anesthetic quality which numbs user’s throat, making it easier to inhale harsh tobacco. • “Healthier alternative” 1940’s ads for Julep • “Even if you’re a chain smoker, your mouth feels clean, refreshed at end of day. ” (script) • Kool (1933 – 1960) “Willie” • Smoking cartoon penguin ( www. bestoldcommercials. com/kool-cigarettes-willie-penguin/ ) • “Snow Fresh” think skiing, skating, snow.

AND HERE HE IS.

MORE COMPELLING ARGUMENTS (CONT. ) ( WWW. TOBACCOFREEKIDS. ORG/ASSETS/FACTSHEETS/0390. PDF ) CITATIONS IN PDF FACT SHEET • Menthol makes it easier for youth to initiate tobacco use. • History of using flavors to reduce harshness. • Menthol is only flavor left on the market. • After FDA’s 2009 ban on other flavors, use of menthol cigarettes increased significantly. • Youth smokers more likely to use menthol cigarettes than any other age group. • • 54% of youth smokers (12 -17) use menthol vs. less than 33% of adult smokers. Prevalence even higher among African American youth (7 out of 10). 1 in 5 smokers ages 12 – 17 prefer Newport. 52% of new young adult smokers initiated with menthol (18 – 34) • 93% of African American smokers vs. 44 % of white smokers.

MORE COMPELLING ARGUMENTS (CONT. ) HTTPS: //TRUTHINITIATIVE. ORG/NEWS/MENTHOL-FACTS-STATS-AND-REGULATIONS • Menthol increases addiction and makes it harder to quit. • It is “likely that menthol cigarettes pose a public health risk above that seen with nonmenthol cigarettes. ” (FDA). • Less harsh, increased initiation, greater addiction. • FDA and TPSAC conclusions: • • Increased nicotine dependence Decreased success in smoking cessation. www. fda. gov/downloads/ucm 361598. pdf pg. 209. Https: //tobacco. ucsf. edu/tpsac-gave-fda-what-it-needs-to-ban-menthol • Youth use of menthol cigarettes has increased from 2009 to 2016. • Courtemanche, CJ, et al. , “Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use, ” American Journal of Preventive Medicine, published online January 9, 2017.

MORE COMPELLING ARGUMENTS (CONT. ) WWW. TOBACCOFREEKIDS. ORG AND ACCOMPANYING CITATIONS • Tobacco industry targets minorities and youth with menthol marketing. • Decades long marketing campaigns. • Marketed disproportionately to youth and African Americans. • Sponsorship of community and music events. • Kool Jazz Festival • Salem Summer Street Scenes • Targeted magazine advertising. • With high youth readership. • Ebony magazine. • Youthful imagery. • Retail environment marketing. • Retail promotions in neighborhoods with high African American populations.

MORE COMPELLING ARGUMENTS (CONT. ) • Menthol cigarettes and the public heath standard: a systematic review • “Eighty-two studies on menthol cigarette initiation (n=46), dependence(n=14), and cessation (n=34) were included. Large, representative studies show an association between menthol and youth smoking that is consistent in magnitude and direction. One longitudinal and eight crosssectional studies demonstrate that menthol smokers report increased nicotine dependence compared to non-menthol smokers. Ten studies support the temporal relationship between menthol and reduced smoking cessation, as they measure cessation success at follow-up. ” • “The strength and consistency of the associations in these studies support that the removal of menthol from cigarettes is likely to reduce youth initiation, improve smoking cessation outcomes in adult smokers, and in turn, benefit public health. ” Villanti et al. BMC Public Health (2017) 17: 983

AND THEN WE HAVE JUULS (AND OTHER E-CIGARETTES)

VAPING BASICS • Current use of cigarettes among high school students has decreased by 82% since 1995 (35. 7% to 6. 4%). (Youth Tobacco Use in Massachusetts, Department of Public Health, March 2019) • In contrast, current use of e-cigarettes among students is 20. 1%. (MA YRBS 2017) • Increasing 78% for high schoolers and 48% for middle schoolers • Juul’s unique design, high nicotine content and affordable price make it a student favorite (coupons, specials, etc. ) • Lots of negative publicity -- gets attention of U. S. Food and Drug Administration. • Not regulated at the federal level.

“SMOKING IS GROSS, ” A HIGH SCHOOLER SAID. “JUULING IS REALLY WHAT’S UP. ” THE NEW YORKER, “THE PROMISE OF VAPING AND THE RISE OF JUUL” 5. 14. 18 • 2018 report from National Academies of Science, Engineering and Medicine found substantial evidence that e-cigarette use increases the risk of ever using combustible cigarettes among youth and adults. ” • Youth 12 – 15: e-cig use associated with more than 4 times the odds of trying combustible products and 3 times the odds of current cigarette use. • E-Cigarette Use and Youth – entryway to nicotine addiction, even for nonsmoking youth. • Most commonly used nicotine product among youth since 2014. • From 2017 to 2018 e-cig use increased by 78% for high schoolers and 48% for middle schoolers. (https: //www. fda. gov/tobaccoproducts/publichealtheducation/protectingkidsfromtobaccooo/ucm 625887. h tm • 3. 6 million high school and middle school students use e-cigs. • Many of these kids have never used a tobacco product.

E-CIG USE AMONG YOUTH • Juul is valued at $ 38 billion this past summer. • Juul owns about 75% of the market. • Philip Morris bought 35% of Juul for $12. 8 billion. • Thumbnail-size pod contains nicotine in a pack of cigarettes. • Among 12 – 17 year-olds, mint was the third most popular flavor, behind fruit and mango. (https: //truthinitiative. org) • Among 18 – 21 year old's, mint was the top flavor. (id) • “I took a hit, and another. Each one was a white spike of nothing: a pop, a flavored coolness, as if the idea of a cucumber had just vanished inside my mouth. . . To Juul. . . is to inhale nicotine free from the seductively disgusting accoutrements of a cigarette: the tar, the carbon monoxide, the garbage mouth, the smell. ” (New Yorker article).

FLAVORED E-CIGS ATTRACT YOUTH AND THE INDUSTRY KNOWS IT “E-cigarettes are marketed by promoting flavors and using a wide variety of media channels and approaches that have been used in the past for marketing conventional tobacco products to youth and young adults. ” (E-Cigarette Use Among Youth and Young Adults, A Report of the Attorney General Fact Sheet) Flavored products play a key role in initiation of tobacco use. (Preventing Tobacco Use Among Youth & Young Adults. A Report of the Surgeon General) Industry spends most of its money (95%) marketing these products at the point of sale in convenience stores and neighborhood stores where kids frequent. (www. tobaccofreekids. org)

HEALTH CONCERNS (WWW. MASS. GOV/SERVICE-DETAILS/LEARN-ABOUT-E -CIGARETTES-VAPES-AND-USE-BY-YOUNG-PEOPLE) • Contain liquids that are aerosolized – NOT WATER VAPOR. • Nicotine – Juul contains 5% nicotine – extremely high level (not permitted in UK). • Causes dependence and addiction. • Damages developing adolescent brain. • Can prime developing adolescent brain for addiction to other substances. • FDA investigating several dozen reports that e-cig users have experienced seizures (4. 3. 19 report). • Known potential side effect of nicotine toxicity (mostly youth and young adults.

HEALTH CONCERNS (CONT. ) • Ultrafine particles that can be inhaled deep into the lungs. • Flavoring, like diacetyl, a chemical linked to serious lung disease. • Bacterial and fungal contaminants found. (www. hsps. harvard. edu/news/pressreleases/microbial-contaminants-found-in-popular-e-cigarettes/) • Substantial evidence that e-cigarette use results in symptoms of dependency. (NASEM 2018 report). • Conclusive evidence that exposure to nicotine from e-cigarettes is highly variable. (NASEM 2018 report). • Not regulated. • Long-term health effects are unclear.

PHYSICAL SAFETY CONCERNS • Conclusive evidence that e-cigarette devices can explode and cause burns and projectile injuries. • Conclusive evidence that intentional or accidental exposure to e-liquids (from drinking, eye contact, or dermal contact) can result in adverse health effects including but not limited to seizures, anoxic brain injury, vomiting, lactic acidosis. • FDA investigating several dozen reports that users have experienced seizures. • Known side effect from nicotine seizures. • Mostly youth and young adults.

YOUTH ADDICTION CONCERNS • E-cigarette use has increased 900% among high school students in the U. S. (ECigarette Use Among Youth and Adults: A Report of the Surgeon General, 2016). • 3. 6 million high school and middle school kids use e-cigarettes. • Nicotine is highly addictive, notably high nicotine concentration in popular products, like Juul • E-cigarette among youth is unsafe. • Kids are getting “nic sick”. • E-cigarette use increases the risk of ever using combustible cigarettes. • Youth 12 – 17: e-cig use associated with more than 4 X the odds of trying combustible products.

YOUTH ADDICTION CONCERNS (CONT. ) • The F. D. A. “. . . Won’t tolerate a whole generation of young people becoming addicted to nicotine as a trade-off for enabling adults to have unfettered access to these same products. ” (Gottlieb). • Jason Jeong, Junior at Cornell University in a column entitled “Juul Season is Over. ” • “No analysis or criticism of our collective fervor for the Juul will ever be as compelling as the fact that we have all become addicted to nicotine. ” • “It is time to address the Juul as what it is: the public health crisis of our generation. ” • “Wooo!! Juul!! I hit it from the moment I wake up to the moment I can’t go to sleep, and keep Juuling. ”

OPPOSITION ARGUMENTS

“WE ARE THROWING ADULT SMOKERS UNDER THE BUS BY RESTRICTING E-CIGS TO ADULT-ONLY STORES. ” • Quote from Michael B. Seigel, MD, Professor, Community Health Sciences, Boston University School of Public Health in letters to Lynn, etc. • NO, WE AREN’T. • Quotes from Jonathan Winickoff, MD, MPH, Professor of Pediatrics, Harvard Medical School. • “If you compare the Juul to a thing [combustible cigarettes] that kills one out of every two users, of course it’s safer. . . And it’s not just Juul. . . There are hundreds of different companies. ” (The New Yorker, The Promise of Vaping and the Rise of Juul, May 5, 2019).

HARM REDUCTION • Conclusive evidence that completely substituting e-cigs for conventional combustible cigarettes reduces adult users’ exposure to many toxicants and carcinogens present in conventional cigarettes. (NASEM – 2018 report). • Of the 700, 000 (14%) of adult smokers in MA, 5. 5% used e-cigs to try to quit and 30% used FDA approved medication, mostly prescribed by physicians. (BRFSS 2016). • But, let’s assume that e-cigs work for argument only.

ADULTS CAN STILL GET E-CIGS • Nearly 75% of (US) daily vapers get their products online or from a vape shop (adult-only). • 70% of (US) adult flavor users get their products online or from a vape shop. • Where do Vapers Buy Their Vaping Supplies? Findings from the International Tobacco Control (ITC) 4 Country Smoking and Vaping Survey, Int. J. Environ. Res. Public Health. 2019 Feb; 16(3) 338. • The FDA “. . . Won’t tolerate a whole generation of young people becoming addicted to nicotine as a trade-off for enabling adults to have unfettered access to these same products. ” (Gottlieb). • They can still get them, just not with “unfettered access” in convenience stores.

YOUTH AREN’T GETTING THE PRODUCTS IN STORES • Yes, they are. • See truth initiative survey results from 1000 12 -17 -year-olds. • 74% said they got them in brick and mortar stores. • Internet retailers that aren’t checking drivers’ licenses and public records for exact matches are being shut down. • Parents’ testimony. • They are being targeted with marketing in these stores.

PUP LAWS, LIKE THOSE FOR ALCOHOL AND MARIJUANA IS THE WAY TO GO • Not according to police. • Ticketing in ineffective, especially since enactment of Criminal Justice Reform Act • Purpose to support youngest and most vulnerable. • Expunges criminal records. • Decriminalizes first offense. • Immunity from prosecution now for minor in possession of alcohol. • Virtually impossible to enforce. • Can target individuals. • AND – MA has been able to reduce youth cigarette use significantly during the past 20+ without PUP laws.

WAIT FOR THE FDA TO COMPLETE THE RESEARCH THEY HAVE MORE RESOURCES • Why don’t we wait for the FDA to determine that e-cigarettes are safe? • Backfired in Billerica because one of the Board of Health members was a chemist with a Ph. D. • Boards are enacting reasonable health regulations. • If we wait for the FDA, my 10 -month old grandbaby will be almost 11 years old. • Graphic warnings. • Gottlieb leaving. • And what happens during those 10 years? OH, AND THERE’S THIS. . .

LANDMARK 2006 FEDERAL DISTRICT COURT JUDGMENT

COURT FINDING • U. S. tobacco companies violated civil racketeering laws (RICO) and engaged in a decades-long conspiracy to deceive the United States people about the health effects of smoking and their marketing to youth. • Judge Kessler ordered the tobacco companies to publish statements telling the American public the truth about the deadly consequences of smoking and secondhand smoke. • Tobacco companies fought for more than 11 years to delay doing this. (tobaccofreekids. org). • Finally published in 2018 – in places youth don’t read. (the Boston Globe, etc. )

“ 85% OF ADULT VAPERS IN LYNN [OR ANOTHER CITY/TOWN] PREFER FLAVORED E-CIGARETTES” • Quote in letters to municipalities considering restricting all flavored tobacco products to adult-only retail stores. • Inaccuracies: • NATIONAL data, not Lynn specific- attribution incorrect. • WHO CARES? • Most people who vape prefer flavors • 3% of adult population • More than 20% of youth • Youth are more than 6 times more likely to be current e-cig users than adults. (MA YRBS 2017).

“. . . [N]ATIONAL ESTIMATES SUGGEST THAT THERE AT LEAST 2. 5 MILLION ADULT VAPERS WHO RELY UPON ECIGARETTES TO KEEP THEMSELVES OFF HIGHLY ADDICTIVE AND DEADLY TOBACCO-BURNING CIGARETTES. ”

PROBLEMS WITH THIS STATEMENT • Questionable accuracy • Not calculated by CDC or FDA or any government agency • No “national” estimates. • Data from a blogger who took results from the 2014 National Health Interview Survey (NHIS) to do a crude calculation of number of former smokers who vape. • Blogger himself says he doesn’t know if these 2. 5 million former smokers are actually vaping as a means of quitting.

LET’S ASSUME THE BLOGGER GOT IT RIGHT • 3. 6 million young people are now vaping. • The number is growing exponentially. • Between 2017 and 2018, 1. 5 million more kids started vaping. • That is a 71% increase. • Houston, we have a problem. • This is an epidemic. • Preserving “unfettered access” to e-cigarettes for both adults and kids is threatening to undo a quarter century worth of tobacco control efforts, permit the industry to addict another generation of tobacco users.

“THE DATA ON CIGARETTE BRAND PREFERENCES AMONG YOUTH ALSO DO NOT PROVIDE A JUSTIFICATION FOR BANNING MENTHOL CIGARETTES. ” NOT A BAN. NOT A BRAND. MENTHOL CIGARETTES ARE FLAVORED CIGARETTES, NOT A BRAND OF CIGARETTES.

“THE MAJORITY OF YOUTH SMOKERS PREFER NONMENTHOL CIGARETTE S. ” • Actual quote from the report: “Analysis of 20122016 National Youth Tobacco Survey data found that Marlboro, Newport and Camel were the most commonly reported usual brands smoked by middle and high school current (past 30 day) cigarette smokers. ” • “As was the case with middle school students, Newport was the most prevalent brand among black high school students (47. 5% in 2016), and Marlboro was the most prevalent brand among white students (59. 5% in 2016). ” • Do we only care about white middle and high school students?

RESTRICTING THESE PRODUCTS WON’T SOLVE THE VAPING PROBLEM • It will drastically reduce places where adults can buy and give to youth (social sources). • Vaping rates are still rising even with hundreds of flavor restriction regulations in place in MA. • Still sold mint Juuls in convenience stores. • It’s an epidemic. • Even more of a reason to strengthen these point of sale regulations. • Public health laws take time to produce outcomes. • They don’t happen in a couple of years. • It’s a reasonable public health regulation. • Incremental public health strategies are not arbitrary.

EVALUATION OF FLAVORED RESTRICTION POLICIES IN MASSACHUSETTS • Impact of flavored tobacco restrictions on flavored tobacco availability statewide. • (Kingsley et al. Tobacco Control) • Impact of the flavored tobacco restriction on the retail environment and retailer experience with compliance in Boston. • (Kephart et al. Under review Tobacco Control) • Short-Term (6 month) impact of flavored tobacco restriction on youth tobaccorelated behaviors. • (Kingsley et al. Under review American Journal of Preventive Medicine) • Long-term (1 -2 year) impact of flavored tobacco restriction on youth tobaccorelated behaviors. • (Kingsley et al. Coming soon)

LAKE QUANNAPOWITT, WAKEFIELD EARTH DAY CLEAN-UP

AND NOW SHE IS A JUUL EMPLOYEE IN GOVERNMENT RELATIONS. . .

“LEAVES MOST DANGEROUS, COMBUSTIBLE PRODUCTS IN STORES” (ANOTHER M. SIEGEL QUOTE) • Then RESTRICT ALL TOBACCO PRODUCTS TO ADULT-ONLY RETAIL TOBACCO STORES – HOWEVER: • Incremental public health strategies are not arbitrary.

QUESTIONS? SBARRA@MAHB. OR G