Lots of Smoke as Colorado Lawmakers Consider Proposed Flavored Nicotine Ban

At the start of the current session, Colorado lawmakers introduced legislation that sought to ban the sale of all flavored tobacco and vaping products in the state, without exception. But now the exceptions are starting to add up.

"When I look at policy, when I look at why I came down here, when I look at what takes priority, it will always be the health of our kids," Representative Kyle Mullica, a Democrat from Federal Heights, said during a March 16 Health and Insurance committee meeting where the debate over House Bill 1064 stretched over eight hours. Mullica is co-sponsoring the bill with Representative Jennifer Bacon and Senator Rhonda Fields, both Democrats, and Republican Senator Kevin Priola.

The committee voted 7-4 to advance the bill, with Democrats supporting the move and Republicans opposing it — but not before the committee watered down the measure significantly.

Against opposition from Mullica and Bacon, the committee approved an amendment that exempts 21-plus vape shops from the flavor ban. That amendment, brought forward by Democratic Representative Chris Kennedy, would give vape shops, which make most of their money from selling flavored products, a chance to stay in business. At the same time, the amendment would cap the number of vape shop licenses in the state at approximately 200, and also place tracking numbers on products so that regulators can trace their origin if children get their hands on them.

But Mullica expressed doubts that that will work. "Now we are going to pass an amendment that will benefit those who have marketed to our kids and addicted our kids. And that’s just the fact," he said.

The committee also agreed to exempt premium cigars, and approved an amendment to exempt pipe tobacco, which was introduced by Republican Representative Matt Soper. The committee rejected Soper's amendment to exempt chew tobacco, however. And convenience stores and gas stations still would not be allowed to sell flavored tobacco products.

The co-sponsors have promised to add an amendment that will exempt hookah tobacco, all of which is flavored. In the meantime, the committee approved making the bill's effective date January 1, 2024.

While youth smoking rates have been dropping, youth vaping rates have increased significantly in recent years. As of 2014, electronic cigarettes became the most commonly used tobacco product among youth. Those pushing to ban the sale of flavored tobacco products say that flavors are often what draw kids into vaping.

In a 2019 survey conducted by the Centers for Disease Control and Prevention, 27.5 percent of high school students reported using an electronic cigarette within the past thirty days, though that figure dropped to 19.6 percent for 2020.

"This is a public-health disaster. We’re allowing an entire new generation of children to be addicted to nicotine," Ted Maynard, a pediatrician from Colorado Springs, said at the March 16 hearing.

Proponents of the flavor ban, dozens of whom testified at the hearing, noted that tobacco companies have historically targeted the Black community with menthol cigarettes, and also marketed to people who identify as part of the LGBTQ community.

But the dozens of people who testified in opposition to the bill spoke about consumer choice, warned of the potential harm to local businesses, and also pointed out how people can use flavored vaping products to quit traditional cigarettes.

"Since my store opened in 2018, we’ve helped hundreds of former smokers quit," said Eric Roy, the owner of Mountain View Vapes in Littleton. "These are adults, most of whom have a history of tobacco use."

While proponents of flavored tobacco bans highlight the products' attractiveness for youth, they often discount the attractiveness of flavors for adult nicotine users, including those trying to quit smoking. "While flavor bans could reduce youth interest in e-cigarettes, they could also reduce adult smokers’ vaping to quit smoking. Like youths, adults prefer non-tobacco flavors, both groups favoring fruit and sweet flavors," a September 2021, peer-reviewed American Journal of Public Health research paper noted.

Studies have shown that electronic cigarettes can be helpful for adults trying to quit smoking, even more so than other smoking-cessation treatments. "E-cigarettes were more effective for smoking cessation than nicotine-replacement therapy, when both products were accompanied by behavioral support," researchers with the New England Journal of Medicine concluded in a February 2019 article that cited a study in which participants were encouraged to purchase e-liquids in the flavor and strength of their choice.

Over 150 people had signed up to offer public comment at the committee hearing. As of March 16, 230 lobbyists have registered to lobby one way or another on HB-1064.

"This bill has probably been lobbied more than any other bill that I've seen in my four years in the State House of Representatives," Soper said.

Among those who have registered are lobbyists from the American Heart Association and the Tobacco-Free Kids Action Fund; the Campaign for Tobacco-Free Kids has been partnering with Bloomberg Philanthropies in recent years to tackle the issue of youth vaping. The City of Denver has hired lobbyists to support the measure.

On the other side, R.J. Reynolds Tobacco Company, which boasts brands like Camel, Newport and vaping subsidiary Vuse, has lobbyists opposing the bill. So does Altria, which has a subsidiary that produces Marlboro cigarettes and another one that produces popular brands of dip tobacco, most of which is flavored. Altria also has sizable investments in the vaping industry.

The fight at the Colorado Capitol comes after a contentious debate in Denver late last year. After months of work, Denver City Council reps Amanda Sawyer and Debbie Ortega had proposed an ordinance that would have banned most flavored tobacco products, with exemptions for hookah tobacco, premium cigars and pipe tobacco.

In an 8-3 vote, council approved the proposal in early December. But Mayor Michael Hancock vetoed the bill, expressing concerns that by exempting certain products, such as hookah tobacco and premium cigars, while still banning the sale of menthol cigarettes, council was picking winners and losers. Hancock also said that he preferred that any ban on flavored tobacco products be issued on a statewide level.

California's legislature approved a flavor ban bill in 2020; it had exemptions for hookah tobacco, premium cigars and pipe tobacco. Since then, large tobacco companies have poured millions of dollars into an effort to overturn that ban through a statewide referendum.

Colorado might see the same scenario — if HB-1064 passes and Governor Jared Polis signs it into law. But there's no guarantee of that happening.

"The governor has signed legislation providing local governments authority to regulate tobacco products," notes Conor Cahill, spokesperson for Polis. "And as a general philosophy, he prefers local control because our local governments are closest to the people they represent."