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IN DEPTH: Vaping taxes, bans cause controversy

IN DEPTH: Vaping taxes, bans cause controversy


E-cigarettes and vaping products have been on the market since the mid-2000s. Recently, the industry has underwent a crisis as the national death toll linked to vaping has grown to 18, with over 1,000 more people going to hospitals with vaping related lung injuries.

The mostly unregulated industry is now thrust into the spotlight of lawmakers and agencies like the CDC and FDA, with states beginning to take action. A number of states, including Michigan, New York, Massachusetts, Rhode Island, and New Jersey, have banned or partially banned vaping. However, some feel these bans are arbitrary and made without proper understanding of the facts.

What is vaping?

Vaping covers a wide variety of products using numerous separate ingredients. Wisconsin defines “vapor products” as a noncombustible substance that produces vapor or aerosol meant for inhalation. Unlike cigarettes, vapor products do not combust, so there is no smoke.

The definition means products that use nicotine salts, such as the cartridge-based JUUL pods or cig-a-like BLU e-cigarettes, and tank-based products that use freebase nicotine in a liquid suspension are treated as the same type of product. THC-based products, which are illegal in Wisconsin, can also be considered vapor products if the THC is inhaled in aerosol form.

Vaporizing devices have a mouthpiece, battery or batteries, a cartridge or tank that holds e-liquid, and a heating component. The device heats up the liquid and turns the liquid into an aerosol, which is inhaled into the lungs. There is no tobacco in e-liquid.

Nearly all vapor products are liquid based, made from a mixture of vegetable glycerin and propylene glycol. E-cigarettes and cartridge-based vaporizers contain the highest levels of nicotine. JUUL pods and other nicotine salts based products contain up to 59 milligrams of nicotine per milliliter of e-liquid, while most companies that produce freebase nicotine products do not make products containing more than 6 milligrams of nicotine per milliliter of e-liquid.

Cigarettes contain about one milligram of nicotine each, or about 20 milligrams in a pack.

The list of ingredients on most vaping products contains vegetable glycerin, propylene glycol, food grade flavor extracts, and nicotine.

Health concerns

Unlike tobacco products, vapor products do not produce tar, which is where most of the carcinogenic and poisonous chemicals in cigarettes are found. Cigarettes also contain more than 7,000 chemicals, including 250 poisonous and 70 carcinogenic chemicals. Vapor products do not produce nearly as many harmful chemicals, but still can produce carcinogenic chemicals.

The majority of vapor products contain nicotine. Nicotine is addictive, and can cause increases in blood pressure, heart rate, blood flow, and narrowing of the arteries. Tara Noye, Coordinator of the South Central Wisconsin Tobacco Free Coalition, which covers Sauk, Juneau, Adams, and Richland Counties, said that although there is evidence that vapor products can help smokers quit smoking, vaping is not healthy.

“The gold standard is to use FDA approved cessation messages — patches, lozenges, gum, one-to-one counseling. There does seem to be harm reduction benefits to vaping, but unfortunately we don’t see people quitting, they continue to use vaping products,” Noye said. “If you are not a current smoker, there are no benefits to picking up vaping. It’s gotten very convoluted and confusing for people to hear, that just because it’s healthier doesn’t mean it’s healthy, it’s only healthier for those people who are consuming thousands of chemicals through cigarettes. That’s a very low bar of healthier when comparing it to cigarettes.”

Besides nicotine, some e-liquids contain diacetyl, a flavoring agent that has been shown to cause respiratory diseases for workers who inhale the chemical in manufacturing facilities.

“That got banned in factories because it was giving them popcorn lung,” Noye said.

Over 1,000 people have gone to the hospital with vaping related lung injuries, and 18 people have died, though experts are still trying to determine what in vapor products is causing the issues. In Wisconsin, the Department of Health Services reports there have been 69 confirmed cases of vaping related lung injuries, with another 17 cases under investigation. According to Noye, as of Sept. 27 there was one confirmed case in Sauk County and more suspected cases in Juneau County. No deaths have yet been reported in Wisconsin.

“What’s concerning is the suddenness of this,” Noye said. “The products have been around for a decade, so have we not been screening for this or not linking this?”

The majority of the illnesses seem to have come from THC products. The CDC reports that “The latest findings from the investigation into lung injuries associated with e-cigarette use, or vaping, suggest products containing THC play a role in the outbreak… All patients have a reported history of e-cigarette product use, or vaping, and no consistent evidence of an infectious cause has been discovered. Therefore, the suspected cause is a chemical exposure.”

The Wisconsin Department of Health Services reports similar findings, with a webpage set up health information on vaping stating “The majority of cases reported using e-cigarettes or other vaping devices to inhale THC-containing products, such as waxes and oils… Vaping cartridges containing THC may contain chemicals or additives that are unknown, unregulated, and unsafe.”

The American Vaping Association, meanwhile, says the outbreak of vaping related illnesses is related to THC oils and black market products.

Even though the majority of cases seem to involve THC, health officials have warned consumers to stay away from all vaping products until a specific cause is determined.

While vaping products can assist in helping people stop smoking, the long-term health effects of vaping are not yet known.

A youth epidemic

Concerns about vaping are not just tied to the people who are going to the hospital, but also the amount of youths who are initiating into tobacco use through vapor products.

A National Youth Tobacco survey published the CDC reported in 2018 that about 21 percent of high school seniors reported using e-cigarettes in the previous 30 days. More than three million students said they were current e-cigarette users. Meanwhile, the CDC said only three percent of adults said they used e-cigarettes in 2017.

Of the people hospitalized with vaping related lung injuries, the CDC reports 16 percent are under 18 years of age, and 21 percent are 18-20 years of age.

“There is a lot of evidence that youth initiate with flavored products, so nationally four out of five youth would not initiate without flavored tobacco products,” Noye said.

The minimum age to purchase vaping products is currently 18 in Wisconsin, but Noye says a lot of students in high school receive the products anyway.

UW campuses not spared from e-cigarette trend with some reporting vaping symptoms

“We’re working off of assumptions, but we have heard in school that kids above the legal age, because there is a lot of kids over 18 in high school, or older siblings or even parents purchase the products because they don’t understand, with it being such a new product, how it can affect them,” Noye said.

In discussing a vaping ban in public places in Reedsburg, Ordinance Committee Chairman David Moon, who is also a social studies teacher at the high school, said kids often do not realize how vaping products are bad for them. Students who are caught vaping at the high school are suspended for up to five days.

Wisconsin taking action

Starting Oct. 1, a five cent per milliliter tax on all vapor products went into effect in Wisconsin. A bipartisan group of Wisconsin lawmakers, led by Sen. Howard Marklein, R-Spring Green, introduced a bill to raise the minimum age for purchasing tobacco and nicotine products to from 18 to 21.

For their part, JUUL Labs has come out in support of raising the minimum age to 21.

“We cannot fulfill our goal to provide the world’s one billion adult smokers with a true alternative to combustible cigarettes, the number one cause of preventable death in this country, if youth-use continues unabated. Tobacco 21 laws fight one of the largest contributors to this problem — sharing by legal-age peers — and they have been shown to dramatically reduce youth-use rates,” a statement issued by the company said.

Gov. Tony Evers proposed a 71 percent tax on the wholesale price for vapor products, but his proposal was rejected by the legislature in favor of the per milliliter tax. The 71 percent number is the same tax rate as non-cigarette tobacco products.

Mauston bans vaping in parks

Individual municipalities are also starting to regulate vaping. In August, Mauston passed a ban on vaping in public parks, and included vaping in their clean air act, so vaping is banned in all public buildings. Reedsburg passed a bill banning vaping in public buildings in September.

Reedsburg bans vaping in city buildings

According to data from the FDA, since 2016 the municipalities of Mauston, New Lisbon, Portage, Baraboo, Reedsburg, Richland Center, and Prairie du Sac have had 11 total sales to minors during FDA compliance checks. Ten of the 11 violations were from gas stations, convenience stores, and box retailers, while one was from a vape shop.

In those checks, each of the retailers were issued a warning letter for the first offense. Only one retailer, the New Lisbon Travel Mart, failed a second check. For the second failure, the store was issued a civil money penalty of $279 dollars.

Unlike other states, lawmakers in Wisconsin have not yet moved to ban vaping entirely or institute a flavor ban.

Vape shops struggling

The health crisis, additional regulations, and taxes are causing concern among stores dedicated to vaping.

Jason Clark, the owner of Smokes on State in Mauston and two additional stores in Sun Prairie and Milwaukee, has already seen his business take a hit.

“I used to get 40 customers a day,” said Clark. “Now, I’m lucky to get 8-10.”

Dave Murray, owner of the M of N vape shops in Lodi, Reedsburg, and Baraboo, says his business has also taken a hit.

“Most of my customers have been able to ween through the headlines,” Murray said. “But this is the worst month I’ve ever had as far as I can remember.”

Smokes on State is extremely restrictive on who it sells vapor products to, according to Clark. He sees his products as a way to get people to quit the far more harmful smoking of cigarettes, not as a “gateway” product to nicotine addiction. Murray sees the product the same way, with his shops in Reedsburg and Baraboo maintaining a picture wall of people who have quit smoking by using vape products.

“Many people are so proud of quitting smoking,” Murray said. “That’s why I got into this.”

Clark is also protective of his store’s reputation for not selling to minors, noting that all of all the underage violations in FDA compliance checks in the area, only one came from a vape shop and not a gas station or convenience store. Anyone who looks close to underage, even if they are regular customers, are ID’d each time they enter the store. At M of N Vapors, customer IDs are scanned, and employees have an FDA age calculator on their phones. Smokes on State has an extensive security camera setup, and if someone comes in the store who does not seem to know much about vaping Clark will check the external cameras to make sure there that person is not buying a product for a minor waiting in a vehicle.

“IDing is my job… We’ve had it happen before, they’ll pull up and we can see them through the window give money to someone (of age),” Clark said. “If I see that… or I see them on the cameras, I have them go to the car and get them so I can ID them.”

Despite Clark’s efforts to restrict sales to minors, he knows it is a battle that is impossible to win. He agrees that raising the minimum age to buy products would be “effective to a degree.”

“Many 18 year olds, they’re still in high school,” Clark said. “We don’t always know what (customers) are doing with the product, but if we catch them outside the store they’re banned.”

Clark says the 5 cent per milliliter tax on vape liquid that went into effect Oct. 1 is “ridiculous” for not taxing per milligram of nicotine rather than per milliliter of e-liquid. The tax means JUUL pods, which contain about 0.7 milliliters of e-liquid but up to 50 grams of nicotine per cartridge, or a total of 2.8 milliliters in a four pack, are taxed at a rate of 13 cents on an about $16 dollar product. Meanwhile, a 100 milliliter container of vape juice at three milligrams of nicotine per milliliter are taxed $5 on an about $25 product. Clark says people will buy the higher concentrates of nicotine, such as the JUUL pods with about 71 milligrams of nicotine per milliliter, over the three milligrams of nicotine per milliliter e-juice, which he says is not an effective deterrent for youth.

According to Murray, the tax is not as “harsh” as it could have been, and he hopes the tax goes towards enforcement.

“In the long run, it (the tax) won’t take away my business like negative news is,” Murray said. “Eighty percent of people don’t smoke or vape, so they have no reason to care, they just see the headlines and look at me like I’m the enemy when I’m not.”

Clark worries not just about his business, but that his customers will turn back to cigarettes if vaping becomes too expensive or if flavors are banned.

“Vaping is 95 percent less harmful than smoking, and there’s research that shows that, but they won’t listen to it because it comes from England,” Clark said. “Cigarettes kill hundreds of thousands of people a year… Why would anyone want people to go back to smoking?”

The statistic comes from the Royal College of Surgeons in the United Kingdom, which notes that “Although it is not possible to estimate the long-term health risks associated with e-cigarettes precisely, the available data suggest that they are unlikely to exceed 5% of those associated with smoked tobacco products, and may well be substantially lower than this figure.”

Murray estimates that between a quarter and a half of the people who have quit smoking using vape products at his shop will go back to smoking if flavors are banned.

“I’d go out of business if flavors are banned. There is no way the industry could survive,” Murray said. “Eighty-five to 90 percent of business is flavors other than tobacco.”

To Clark, it seems like vapor shops are unfairly targeted since the majority of problems in the industry are tied to either THC products or the big-tobacco run cartridge-based products. He says that kids use JUUL because they are easy to hide, or they use THC products.

“They (kids) aren’t using this… they can’t hide it,” Clark said, holding up a vape mod the size of his fist. “Everyone in this industry knows the culprits… Most of these (health) problems are coming from black market THC products, and there isn’t a black market for nicotine products.”

That might change if flavors are banned, or if vaping itself is banned. Clark says that although he does not know the exact numbers, more than 90 percent of his sales are flavored products.

“Just because you’re an adult doesn’t mean lose your like of flavors,” Clark said.

Murray agrees.

“Even the CDC says, everything points to the illegal products bought on the street,” Murray said. “If you load up an electronic device with Draino and inhale it, you’re going to die... It’s very disheartening and sad to see illegal drugs causing people to get sick and die, and I feel that, but to pinpoint something on us who sell legally because people just read the headlines is very, very disheartening.”

Eds. note: This article was corrected at 5:45 p.m. Oct. 9 to clarify remarks from Jason Clark regarding the per ml tax and JUUL Pods.

Reach Christopher Jardine on Twitter @ChrisJJardine or contact him at 608-432-6591.

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