NYS Bans Menthol E Cigarettes

September 26, 2019

From Governor Cuomo:

Governor Andrew M. Cuomo today announced he has received and reviewed a recommendation from New York State Health Commissioner Dr. Howard Zucker to include menthol in the ban on the sale of flavored electronic cigarettes and nicotine e-liquids. He has accepted these recommendations and directed the Commissioner to convene an emergency meeting of the Public Health and Health Planning Council as soon as possible to expand emergency regulations to include menthol flavors in the ban.

“It is clear that vape and e-cigarette companies are using flavors to get young people hooked on their products, and in New York we have taken several actions to put an end to this marketing tactic,” Governor Cuomo said. “In addition to the ban on flavored e-cigarettes already in place and after a thorough evaluation, Commissioner Zucker has recommended a ban on menthol flavored e-cigarettes – I am accepting his recommendation and directing him to hold an emergency meeting to adopt this additional ban at the earliest practicable date. We can’t sit back and wait for the federal government to take action while a whole new generation becomes addicted to nicotine, and this ban on the sale of menthol flavors further enhances our efforts to protect young people from forming dangerous lifelong habits.”

On September 17, 2019, New York became the first state in the nation to implement a ban on the sale of flavored electronic cigarettes and nicotine e-liquids, following a vote on an emergency regulation by PHHPC. At that time, the Governor also directed Commissioner Zucker to complete a thorough review of whether menthol should be included in the ban, and to report back with the findings within 14 days.

The Commissioner and his team completed their review of this matter and submitted their recommendation to the Governor this morning. The Department’s review involved multiple studies from medical institutions in addition to a U.S. Centers for Disease Control and Prevention (CDC) survey given to New York State teenagers aged 15 to 17 years old by the State Department of Health. The survey was conducted in the Spring of 2019 and the analysis was finalized last week. The CDC/DOH survey found that young people in NYS are using menthol flavored e-cigarettes at high rates that are increasing. Specific findings include:
• The teenagers’ preference for menthol or mint flavored e-cigarettes was 34.1%, second only to fruit flavors (51.8%).
• Adolescent vapers’ preference for menthol or mint increased from 19.9% in 2017 to 34.1% in 2019, a statistically significant difference.
• When asked, “How harmful to your health do you think menthol or mint flavors of e-liquids are,” nearly half of the youth (47.8%) believed menthol flavored e-liquid was less harmful than tobacco flavored e-liquid.

New York State Health Commissioner Dr. Howard Zucker said, “After careful consideration, it is clear that this research definitively supports the inclusion of menthol in the ban of flavored e-cigarettes. Under Governor Cuomo’s leadership, we will continue to take aggressive steps to protect the public health of all New Yorkers, especially our young people.”

Flavors are largely responsible for the dramatic increase in use of e-cigarettes by youth and are a principal reason that youth initiate and maintain e-cigarette use. According to Department of Health data, nearly 40 percent of 12th grade students and 27 percent of high school students in New York State are now using e-cigarettes, and this increase is largely driven by flavored e-liquids. High school use in 2018 (27.4%) is 160 percent higher than it was in 2014 (10.5%). While New York’s high school student smoking rate dropped from 27.1% in 2000 to a record low of 4.3% in 2016, aggressive marketing strategies promoting flavored e-cigarettes is primed to turn that trend.

Flavoring is a key youth marketing strategy of the vaping/aerosol industry just as it is in the cigarette, cigar and smokeless tobacco markets. E-cigarette marketing highlights flavors such as mint chocolate, bubblegum and cherry cola, and creates a deceptive belief that they are not harmful to users. In a 2017 survey of 15 to 17 year-old adolescents in New York State currently using electronic vapor products, 19% of the adolescents said that flavors were the reason that they first tried an e-cigarette and 27% said flavors were the reason for maintaining use. Studies also show nearly 78% of high school students and 75% of middle school students report being exposed to pro-tobacco marketing in 2016. Legislation will be advanced next session to prevent these deceptive and misleading advertisements to target our youth.

Local health departments and the Department’s District Offices will handle enforcement of the existing flavor ban, which will begin on Friday, October 4. Retailers who violate the ban will face fines of up to $2,000 per violation.