Loyola University Chicago School of Law, JD/MPP 2022
In response to the rise in teenage vaping, and given the link between respiratory issues and COVID-19, the Chicago City Council (“City Council”) passed an ordinance on September 9, 2020 banning the sale of flavored vaping products. Flavored vaping products are targeted to youth and can also mislead them to believe that flavored products are safer than other tobacco products. The City Council originally proposed banning all flavored nicotine products, but after pressure from small business owners, they decided to only pursue a ban on flavored vaping products.
What is the problem?
The number of high school students in the United States who use electronic cigarettes has grown from 1.5% in 2011 to 27.5% in 2019, with more than two-thirds of students having used tobacco in the past month. Luckily, that rate has dropped to 20% in 2020. Still, research shows that 97% of current youth e-cigarette users used a flavored product in the past month, and 80% of youth who had ever used tobacco started with a flavored product. However, 80% of youth users claim they would quit if flavored tobacco products were unavailable.
Continued popularity of flavored vaping products, like Juul, is evident by the fact that 26.5% of high schoolers used disposable e-cigarettes in 2020 (up from 2.4% in 2019) and 15.2% middle schoolers (up from 3% in 2019). In Illinois, 7.5% of high school students smoke cigarettes, while 13.2% smoke e-cigarettes. When it comes to access to these products in Chicago, 73% of public schools are within 1,000 feet of a tobacco retailer.
Another problematic nicotine product that is particular harmful to young people is menthol cigarettes. The original drafting of the ordinance considered banning menthol cigarettes, but that ban has since been abandoned. Menthol has an anesthetic effect allowing for deeper inhalation. This exposes users to higher levels of nicotine and promotes rapid addiction. Therefore, youth who start with a menthol product are much more likely to become lifelong smokers.
“It is past time we put an end to the tobacco industry’s targeting of our youth and people of color,” said Kristina Hamilton, director of advocacy for the American Lung Association. “An ordinance that does not include all flavored tobacco products, including menthol cigarettes, does not go far enough to protect the health of some of our most vulnerable communities.”
Ordinance banning the sale of flavored vaping products
After the ordinance made its way through the Committee on Health and Human Relations, the City Council passed a citywide ban on all flavored vaping products. The ban applies to all flavored liquid nicotine products, except those that taste and smell like tobacco. This includes: tastes or aromas of menthol, mint, wintergreen, chocolate, vanilla, honey, cocoa, any candy, any dessert, any alcoholic beverage, any fruit, any herb, or any spice. However, under this ordinance, flavored cigars and pipe tobacco, flavored chewing tobacco, menthol and mint cigarettes remain legal.
Much of the pushback to the ordinance has come from business owners. Opponents say that this would cause further damage to businesses that have already seen their profits down by 30% from the pandemic. It would also send shoppers to the suburbs, which could hurt the revenue the city gets from the tobacco tax. Business owners argue that stricter enforcement and stiffer penalties would be more effective in limiting teenage vaping more than an outright ban.
Meanwhile, The U.S. Food and Drug Administration (FDA) already barred most flavors, including fruit and mint, from unauthorized cartridge-based e-cigarettes until companies go through the Premarket Tobacco Product Application (PMTA).
What are other cities and states are doing?
In October 2019, Los Angeles County passed a law banning the sale of all flavored tobacco products, including e-cigarettes and menthol cigarettes. Retailers were given 180 days to sell off any remaining inventory. Three major tobacco companies challenged the law in Federal District Court, but their lawsuit was dismissed. There also remain at least five other lawsuits in the country challenging local tobacco flavor bans, including San Diego County, California and the cities of Philadelphia (two separate lawsuits), Edina, Minn., and Palo Alto, Calif.
Earlier this year, New Jersey banned all flavored vaping products, including menthol, mint, and wintergreen. Other States that have banned flavored vaping products are Massachusetts, Michigan, Montana, New York, Oregon, Rhode Island, Utah, and Washington. Maintaining a balance between managing public health and supporting small businesses will be an issue that many municipalities will face in the future.