DC's B24-002 Would Harm Public Health, Criminal Justice, Businesses, & District Economy

June 17, 2021 

To: Members of the Council of the District of Columbia 
From: Americans for Tax Reform 

On behalf of Americans for Tax Reform (ATR), a non-profit organization which advocates in the interests of taxpayers and consumers throughout the United States, I urge you to reject DC B24-002, misguided legislation which seeks to restrict access to lifesaving reduced risk tobacco alternatives such as electronic cigarettes through flavor bans proven critical to the process of helping adults quit smoking, as well as cause severe setbacks in the relationship between minorities and law enforcement while doing nothing to reduce smoking rates by banning menthol cigarettes. 

Policy must be driven by science and evidence, not by ideology. The evidence clearly demonstrates that if enacted, this bill would have a disastrous impact on public health, lead to an increase in smoking rates particularly among high schoolers, and cause conflict between minorities and law enforcement with potentially tragic consequences. B24-002 will harm businesses and cause a serious decline in District revenue at a time the Council is already struggling to balance its finances.  

Further, it is highly concerning that this proposal has not, and is not scheduled to have, a public hearing. While a public hearing for a full flavor ban was held last year, there have been new members elected to the Council and D.C. residents must have the opportunity to share with you how this bill will personally affect them. Furthermore, evidence has emerged from the failures of flavor bans in San Fransisco and Massachusetts that was unavailable at the time, and this must be taken into consideration. Following proper procedures is vital to maintaining public trust in the institution, and it is simply inconceivable to ignore new evidence that is now  available.  

The most recent study that has not as of yet been considered by the Council on flavored vaping products proves conclusively a ban results in increased youth cigarette smoking. The study from Dr. Abigail Friedman at the Yale School of Public Health found that when San Francisco imposed a flavor ban in 2018, youth smoking doubled. Before San Francisco’s flavor ban, the city had lower youth smoking rates than comparable counties like New York and Los Angeles. After the flavor ban, San Francisco’s youth smoking rate rose to 6.2% while comparable districts had an average rate of 2.8%. 

It is critical to note that vaping, by eliminating the combustion process that produces thousands of toxic chemicals in combustible cigarettes, has been conclusively shown to be 95% safer than conventional smoking. As a result, 50 of the world’s leading health bodies have advocated smokers quit the deadly habit through the use of vaping. As a result, it is a public health imperative to help as many adult smokers quit as possible. Studies have repeatedly shown that flavors, which B24-002 would prohibit, are critical to helping adult smokers make the switch to vaping. Adults who use flavored vapor products are 43% more likely to quit smoking than an adult who uses un-flavored products, according to a recent study from ten of the world’s top experts in cancer prevention and public health. 

Additionally, contrary to the claims of anti-vaping advocates, flavors play no role in youth uptake of vaping. Academic studies have found that teenage non-smokers “willingness to try plain versus flavored varieties did not differ” and a mere 5% of vapers aged 14-23 reported it was flavors that drew them to e-cigarettes. National Youth Tobacco Survey results have shown no increase in nicotine dependency among youths since flavored products entered the market. 

Along with the flavor bans imposed on reduced risk tobacco alternatives, B24-002 extends flavor prohibition to menthol cigarettes and other conventional tobacco products. Like bans on flavors in reduced risk tobacco alternatives, these would also come with significant negative consequences for the state, with no evidence whatsoever that they have any effect in reducing smoking rates. To the contrary, real-world evidence from Massachusetts demonstrates that such bans are counterproductive and come at significant cost. 

Since Massachusetts implemented a ban on all flavored tobacco products in the middle of 2020, cross-border purchases and the creation of a booming black market have more than made up a decline in sales in the Commonwealth. In the first since months since the ban was enacted, Massachusetts retailers have sold 17.7 million fewer cigarette packets compared to the same six months in the prior year, while neighboring Rhode Island and New Hampshire have combined to sell 18.9 million more as Massachusetts residents stocked up across state lines. The loss to the state, already amid a fiscal crisis brought on by the Covid-19 pandemic, was a staggering $73,008,000 in 6 months alone. 

While the states of Rhode Island and New Hampshire have been some of the biggest beneficiaries of Massachusetts’ ban, collecting close to $50 million in additional revenue, criminal syndicates have also benefited. Contrary to popular belief that tobacco smuggling is a victimless crime consisting of someone purchasing a few extra cartons across state lines, in reality most tobacco smuggling is run by multi-million-dollar organized crime syndicates. These networks, who also engage in human trafficking & money laundering, have also been used to fund terrorist and the US State Department has explicitly called tobacco smuggling a “threat to national security”. 
 
A flavor ban is particularly useless in Washington, D.C. because neighboring states are so close to the District. In a short period of time, residents of D.C. can cross the border into Virginia or Maryland, purchase flavored tobacco, and return to sell the products illegally. Paradoxically these bans may therefore increase youth smoking in the state: By definition, criminals and smugglers are unlikely to obey laws and would not follow rigorous age-verification requirements mandated at reputable outlets. 

The District’s Office of the Chief Financial Officer estimates that the fiscal impact of this bill will be roughly $3 million in lost tax revenue. This would be a 13.5% decrease in cigarette sales, however this is likely to be a low estimate since Massachusetts’ decline is roughly 26%. There are two key reason to believe that the lost tax revenue in D.C. will be equal, or more, than in Massachusetts.  

First, it is much easier for residents of D.C. to travel to Maryland or Virginia to purchase their preferred product than it is in Massachusetts. Second, the menthol cigarette sales make up 60% of all sales in D.C., compared to just 30% in Massachusetts before the ban was enacted. Banning menthol cigarettes will cause consumers to travel across state lines or purchase from a black-market supplier, heavily impacting tax revenues. As a result of these reasons, D.C. can expect to lose a higher proportion of their tax revenue than Massachusetts to neighboring states and black markets.  

Prohibitions on menthol-flavored cigarettes will also disproportionately impact minority populations and communities of color. Banning menthol cigarettes will also significantly increase the policing of minority communities and lead to a rise in negative interactions between law enforcement and people of color. This proposal prioritizes criminalization over harm reduction and public health and will ensure that people of color will disproportionately suffer from the enforcement of B24-002.  

Civil liberty organizations such as the American Civil Liberties Union (ACLU), the Law Enforcement Action Partnership, and the Drug Policy Alliance are all opposed to bans on menthol and other flavored tobacco products for these same reasons. Further, law enforcement officials overwhelmingly oppose a menthol ban because it will spur smuggling, counterfeit cigarettes, and increase organized crime. 

I would also like to draw your attention to a pair of incidents that occurred in Ocean City, Maryland this past week. Two separate groups of teenagers from minority populations were accosted by police and tasered, kneed, and violently restrained for vaping on a boardwalk. Criminalizing a product will inevitably lead to further confrontations such as this, irrespective of the protestations of the proponents of this bill.  

Washington, D.C.’s Council Office of Racial Equity reviewed B24-002 and determined that “enforcement of this bill has the potential to exacerbate racial inequality in economics and social justice outcomes”. It would be incredibly hypocritical to pass this proposal, knowing that it will disproportionately harm minorities, after D.C. designated a two-block-long pedestrian section in the city as “Black Lives Matter Plaza”.  

Washington, D.C. is over 45% Black, with a significant Hispanic population as well. These communities will be significantly hurt by B24-002. ATR urges you to consider the impacts that this bill will have on some of your most vulnerable constituents. 

About E-Cigarettes and Vapor Products: 

  • Traditional combustible tobacco remains one of the leading preventable causes of death in the District of Columbia. The negative health effects of combustible tobacco come from the chemicals produced in the combustion process, not the nicotine. While highly addictive, nicotine is a relatively benign substance like caffeine and nicotine use “does not result in clinically significant short- or long-term harms”. 
     

  • Nicotine replacement therapies such as nicotine patches and gums have helped smokers quit for decades. In recent years, advancements in technology have created a more effective alternative: vapor products and e-cigarettes. These products deliver nicotine through water vapor, mimicking the habitual nature of smoking while removing the deadly carcinogens that exist in traditional cigarettes.  

Benefits of E-Cigarettes and Vapor Products: 

  • Vapor products have been proven to be at least 95% safer than combustible cigarettes. A comprehensive analysis of nicotine product harm estimates that e-cigarettes expose users to just 4% of the harm of combustible cigarettes. 
     

  • E-cigarettes are also more than twice as effective at helping smokers quit than traditional nicotine replacement therapies. According to one study, a smoker attempting to quit with an e-cigarette has an estimated 323% higher chance of achieving complete cessation compared to someone using a traditional nicotine replacement therapy like nicotine-containing patches, gum, or mouth spray. 
     

  • Vaping has been endorsed by over 50 of the world’s leading public health organizations as safer than smoking and an effective way to help smokers quit. 
     

  • When e-cigarettes entered the market in 2003, the U.S. adult cigarette smoking rate was 21.6%. Due to increased access to vaping, the U.S. adult smoking rate has plummeted to 13.7% as of 2018. 
     

  • A new analysis this year by Public Health England demonstrated just how effective vaping is in helping people quit smoking, noting that in just one year, over 50,000 British smokers, who would have continued smoking otherwise, quit smoking with vaping. 
     

  • A University of Glasgow study showed that e-cigarettes particularly help disadvantaged persons quit smoking. Another new study demonstrated that high-strength electronic nicotine products are particularly helpful for smokers with mental health issues quit smoking, like people with schizophrenia who smoke at rates more than three times the national average. Some 40% of participants had stopped smoking traditional cigarettes by the end of 12 weeks and researchers observed an overall, sustained 50% reduction in smoking or complete smoking abstinence in 92.5% of participants at the end of 12 weeks. B24-002 will have a tremendously negative impact on public health and would fail to decrease socioeconomic disparities by reducing adult access to products shown to improve public health. 

  • A large-scale analysis from Georgetown University Medical Center estimates that 6.6 million American lives can be saved if a majority of cigarette smokers switched to vaping. This would save more than 14,000 lives in the District. 

If you have any questions or concerns regarding this letter or B24-002, please contact ATR's Director of Consumer Issues, Tim Andrews, at tandrews@atr.org or (202)-549-0346.

For the reasons outlined above, in the interests of public health, protecting the Washington, D.C. economy, and avoiding the over policing of communities of color, we call upon you to accept the science and vote against B24-002. Tens of thousands of lives quite literally depend upon it.  

Sincerely, 
 

Grover Norquist
President
Americanws for Tax Reform

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