"We don’t want to erode the value of this proposal, and I think the key to any amendment is that we already see that our tobacco stores are non-compliant," Councilwoman Amanda Sawyer, who is co-sponsoring the ordinance with Councilwoman Debbie Ortega, said during an October 27 Safety, Housing, Education & Homelessness council committee meeting that drew a crowd to council chambers.
Sawyer and Ortega first proposed their measure, which is designed to reduce youth vaping rates, at an October 6 council meeting. As it stands, Sawyer and Ortega's proposal would ban the sale of all flavored tobacco and vaping products in Denver, with no exceptions. Flavored vape juices would get the ax, as would hookah tobacco and menthol cigarettes. And at this point, they say they aren't inclined to add any exemptions, even though other councilmembers have proposed five different amendments.
"This is not being done with a scalpel, it’s being done with a sledgehammer. And we are going to impact adults and prevent them from being adults and buying products that they want," Councilwoman Kendra Black, who is proposing two amendments that would ramp up 21+ age restrictions in tobacco stores rather than ban flavors, said during the committee hearing. "I am actually a historian, and history shows us that prohibition does not work."
The committee ran out of time to discuss proposed amendments during the meeting, which is why Councilman Paul Kashmann, the chair, suggested discussing the proposal one last time on November 17 before voting on whether to forward the ordinance to the full Denver City Council.
Kashmann himself proposed exempting premium cigars and pipe tobacco. And Councilman Kevin Flynn offered an amendment to exempt menthol tobacco products from the ban.
Flynn said he'd heard from members of the Black community on both sides of the issue, with some saying that menthol cigarettes should be banned because the tobacco industry has historically targeted African-American smokers with menthol, and others saying that Black people should be free to smoke menthols if they want.
"The main concern I have overall with the bill, similar to Councilwoman Black, is we want to keep the products out of kids, [but] this approach does that by keeping it out of the hands of everybody," Flynn said.
The fifth proposed amendment came from Councilman Jolon Clark, who is suggesting that hookah tobacco be exempted from the flavor ban. During the meeting, Clark also presented an ordinance proposal that would regulate the hours of operation for hookah lounges, requiring them to close at midnight; currently, they can stay open at all times. Hookah-industry stakeholders would rather see a closing time of 2 a.m., the same time bars must close. Then again, if all flavored tobacco is banned, there may be no more hookah lounges in Denver.
"This is not what kids are whipping out of their backpack in class to smoke. I think that this allows for a lane for those good actors and folks for whom this is a part of their cultural experience while keeping our kids safe," Clark said of his amendment, adding that the proposed ordinance would resolve "an issue that has plagued neighborhoods through bad operators for many many years." For years, he explained, his district has dealt with a problem hookah lounge just off South Broadway.
The committee approved sending Clark's hookah lounge hours-of-operation ordinance proposal to the full council.
A 2020 Centers for Disease Control and Prevention study indicated that approximately one of every five high school students, or 19.6 percent, reported that they'd used electronic cigarettes in the past thirty days. That percentage was down from 27.5 percent in 2019. Flavors are a big draw for kids who take up vaping, according to proponents of the ban.
The efforts of Sawyer and Ortega to ban flavored vaping products come after years of research and advocacy on the issue in Denver.
In early 2020, Mayor Michael Hancock voiced support for further regulation of flavored vaping products. Although the Denver Department of Public Health and Environment looked into what a ban might look like, ultimately the Hancock administration did not sponsor a proposal, saying that a policy fix should be handled at a statewide level. State lawmakers have floated the idea of a possible flavor ban for Colorado, but have never passed any such legislation.
On a federal level, the Trump administration crafted a partial crackdown on vaping products that took effect in 2020. Under those regulations, stores are no longer able to sell flavored pods, the disposable cartridges that vapers place into electronic vaping devices; the only pods that outlets can still stock are menthol- and tobacco-flavored ones. The federal regulations did not affect flavored vape juices that come in bottles and that vapers pour into pods or vape devices, however.
The Food and Drug Administration is currently reviewing applications for vaping products, with companies required to show that the products can have a positive impact on moving adult smokers away from combustible cigarettes while having a minimal impact on youth use of tobacco products. No flavored vaping products have received approval.