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Utah lawmakers to continue efforts to stem youth vaping

A press conference about vaping is held at the State Capitol on Jan. 29, 2020.
Electronic cigarette devices and cartridges are displayed during a press conference about vaping at the Capitol in Salt Lake City on Wednesday, Jan. 29, 2020.
Wendy Leonard, Deseret News

SALT LAKE CITY — In an effort to stem the youth vaping epidemic, Utah legislators are pushing to add a state tax to electronic cigarettes, limit the sale of flavored products to specialty tobacco stores and increase the state’s legal tobacco age.

An outright flavor ban — as some vape shop owners have feared and some health advocates have pleaded for — has not been proposed in legislation.

“We’re not going to fix the entire problem. There’s still going to be e-cigarettes used out there. There’s still going to be people who break the law, just like speed limits don’t stop all speeding. But it provides penalties, and we have to start someplace,” said Sen. Allen Christensen, R-North Ogden, sponsor of a bill that would place vaping and e-cigarette products under the same requirements as tobacco.

“And hopefully this is going to have a good effect, especially on the youth. That’s what I’m really trying to get some protections for,” Christensen explained.

At least 12.4% of Utah youth in eighth, 10th and 12th grades report using e-cigarettes regularly, according to the Utah Department of Health — that’s at least 37,767 students who are vaping, said Marc Watterson, director of government relations in Utah for the American Heart Association.

“This is a public health crisis,” he said Wednesday during a press conference on vaping held at the Capitol.

Utah Gov. Gary Herbert said anyone using vaping products, particularly the youth, are at risk of various health problems including inhibited brain development.

“Is vaping as safe as some people are saying?” Herbert said. “We think it is not.”

He said at least 127 Utahns have been hospitalized with lung injuries related to electronic cigarette use, including one person who died.

“It’s time for us to really make this an issue,” Herbert said, adding that he intends to “inhibit and maybe prohibit vaping” in Utah.

Herbert, more than a handful of Utah lawmakers, as well as various organizations, education officials, law enforcement officers and businesses, are making vaping a priority at this year’s legislature. There are at least three bills already numbered and at least three others in process.

Taxing e-cigarettes

According to proposed bill SB0037, vaping and e-cigarette products would be considered the same as tobacco products and subject to the same rules.

“It establishes, hopefully, one of the best preventive measures, and that is it puts a significant tax on vaping e-cigarettes and vaping products, which will be the same tax which is on other tobacco products,” said Christensen, the bill’s sponsor.

That tax would be 86% of the manufacturer’s sale price, Christensen explained, as it is for tobacco products. The bill would also restrict online sale of vaping products and carry a large fine for the seller.

On average, federal and state taxes combined on tobacco products make up an average of 44.3% of the final retail price, according to the Tax Foundation.

The regulations in the bill are also meant to prevent shops from “gaming the whole system,” Christensen said. The bill would require shops to provide transaction slips with specific details so they can’t bypass the new tax.

As part of the bill, all of the tax money the state gets from the sale of e-cigarette and vaping products would go into a fund to hire 10 new public safety officers dedicated to preventing drug and e-cigarette use among youth, according to the senator. The officers would work to find out where teens get vaping and e-cigarette products, as well as drugs, according to the senator.

The bill would also would allow school administrators to confiscate and even destroy students’ e-cigarettes brought onto school property.

Limits on flavored e-cigarettes

Early in January, the Food and Drug Administration announced it would begin enforcing a ban on flavored cartridge-based e-cigarettes, with exceptions for menthol and tobacco. The agency said within 30 days it would “prioritize enforcement” against companies that sold flavored cartridge-based products, as well as companies that sold products “targeted to minors” or failed to prevent minors’ access to products.

The American Heart Association said in a statement the move “falls well short of what is needed to combat the youth tobacco epidemic.”

“Only cartridge or pod-based flavored e-cigarettes have to be removed from the market. The policy still allows companies to sell fruit, candy and mint e-liquids used in refillable open tank e-cigarettes that are typically sold in vape shops,” the association explained.

Utah has also independently sought to get flavored e-cigarettes out of the hands of teens.

The Department of Health in an emergency rule last October restricted retail stores without specialty licenses from selling flavored products as anxiety over the vaping-related lung illness was at its height. In response, a group of local retailers filed a lawsuit, saying the ban would spell an end to their businesses. A judge ordered a stay on the restriction after determining that state regulators who sought to restrict the sales failed to link them to a rise in cases of lung illness.

Under current law, if over 35% of a business is made up of e-cigarettes and/or tobacco products, it is considered a specialty tobacco shop. Those shops are more limited in where cities will approve their licenses — within a certain distance from homes and public buildings like schools. Underage shoppers are restricted from entering specialty tobacco shops, unlike mixed retail shops that are allowed to sell e-cigarette or tobacco products at a lower volume.

Local vape shop owners who have specialty tobacco license have expressed frustration with what they call the ability of retailers without such licenses to skirt regulations. At least one lawmaker agrees.

Another law proposed in Utah will attempt to limit youth’s access to vaping products by making flavored products illegal for stores without specialty tobacco licenses to sell.

HB0118 would require stores that sell flavored e-cigarette products to have tobacco specialty store retail licenses, as opposed to a regular, mixed-retail licenses. The bill, like the one being ran by Christensen, would also require detailed receipting.

“What we’re seeing is that stores that are not licensed as tobacco specialty stores are functioning like tobacco specialty stores because the large majority of their business is tobacco and e-cigarette products, but their receipts don’t say ‘tobacco and e-cigarette products’ because they’ll put on their receipts something like ‘miscellaneous,’” bill sponsor Rep. Jen Dailey-Provost, D-Salt Lake City, said.

“If we restrict ... that deceitful receipting process, it will quickly show who’s selling as a tobacco specialty shop but not licensed to be a tobacco specialty shop,” Dailey-Provost said.

The law would also limit the price under wholesale cost at which a store can sell a product, according to Dailey-Provost. It would require them to sell at no less than 10% under wholesale to prohibit stores from selling an overpriced sweatshirt for $50 and including “free” e-cigarette products in the purchase.

Dailey-Provost ran the same bill last year but it ran out of time to pass before the session ended. She believes the bill has a strong chance of passing this year after the vaping-related illness last year brought increased awareness to young adult vaping.

“It is important to remember that those are still a very different issue than the problem I’m trying to solve, and that’s youth use. It’s tragic, but if nothing else, we’ve gotten to a point where our Legislature is starting to recognize the broader issue of this as a significant public health crisis,” Dailey-Provost said.

She said she’s spoken to advocates about the wisdom in an outright ban of flavored products, but did not want to affect the adults who use e-cigarette products as a way to quit smoking.

If given a “binary choice” between protecting children and giving adults a reduced-harm product, she said she would choose protecting kids.

“Since we live in a world that is not binary, I think it’s reasonable to make sure that e-cigarettes stay legal and available to adults. But we’ve got to do much, much better about protecting kids,” Dailey-Provost explained.

Legal age change

Late in December, President Donald Trump signed a bill into law raising the federal smoking age to 21.

Utah had already passed similar state legislation early last year, but it would’ve staggered the dates when the law went into effect, raising the legal smoking age in Utah to 20 in 2020 and 21 in 2021 so as not to impact those under 21 who had already been smoking, lawmakers have said.

After the FDA announced the law immediately took effect, some Utah smoke and vape shop owners began denying those under 21 without receiving further guidance, and not knowing when the rule would be enforced.

One bill expected to run this session will modify state law to match the new federal tobacco age.

“With the federal government’s new ruling, it makes no sense to have a federal law that says you can’t do it until you’re 21, and to have a state law that says you might be able to do it until next year,” explained bill sponsor Rep. Lee Perry, R-Perry.

He said the change is necessary to ensure local agencies enforce the federal guideline in Utah.

“It’s basically saying we need to move forward with this 21 age. ... It just makes sense that the state of Utah follow suit, and we need to get it done and put it in place so there’s not that confusion with the people out there,” Perry said.

Watterson said that e-cigarette use among children in Utah has increased from 2 or 3 of 100 middle and high school students eight years ago, to 1 in 8 today.

The organization’s “key priorities” to get tobacco and nicotine out of the hands of children include some of the proposals lawmakers are suggesting this session — taxing e-cigarette and vaping products; bringing Utah’s age limit into compliance with federal law; and removing all flavored tobacco products from the market — or, at least, restricting their sale to specialty tobacco retailers.

“We have heard from multiple students, parents and school administrators from across the state. It’s the flavors of e-cigarette products that get these kids to start, but it’s the nicotine that keeps them hooked. Just as flavored e-cigarette products are appealing to youth, so are many other flavored tobacco products,” Watterson said.

Utah Attorney General Sean Reyes said Wednesday that “vaping is normalizing tobacco use.”

It is more popular among teens, he said, because it is perceived as being less dangerous, and it is less expensive than smoking cigarettes and easier to conceal. The flavors, Reyes said, are enticing to minors and there is less stigma surrounding vaping, as it is commonly seen on social media and television.

At 19, Katie Bertram started vaping “for fun” with friends. While she tried to limit it to “special occasions,” it quickly turned into a regular thing, she said.

“I had to have it always,” Bertram said Wednesday. She vaped mango- and mint-flavored cartridges until she started waking up with chest pain and experienced breathing problems.

As a ski instructor and avid outdoor enthusiast, Bertram said she didn’t want to give up her health and she made the tough decision to quit. It took several attempts, but eventually she went “cold turkey” and was able to stop.

“It’s rare to find an adult user who wasn’t addicted as a teen,” said Dr. Joseph Miner, Utah health department director. He said vaping companies are most certainly targeting children with their products to addict a new generation.

“It will only get worse unless we take major action,” he said.