September 19, 2019

Stanton A. Glantz, PhD

What Calif Gov Newsom should do to really engage the youth and young adult nicotine and THC vaping crisis

On September 16, 2019, California Governor Gavin Newsom signed an executive order to do three things in response to the e-cigarette epidemic:

  • Direct the Department of Tax and Fee Administration to develop recommendations to remove illegal and counterfeit vaping products from stores and include nicotine content in the calculation of the existing tax on electronic cigarettes
  • Direct public awareness campaign to focus on educating youth about the harms of vaping tobacco or cannabis products
  • Direct the Department of Public Health to develop recommendations to place warning signs at retailers and on product advertisements

He also signed legislation to impose stricter age verification requirements for sale of tobacco products.

While it is great that Governor Newsom signed the age verification bill and is engaged with the e-cigarette epidemic, I am concerned that the actual steps he is taking on nicotine e-cigs will do more harm than good.  The fact that he is now talking about cannabis along with tobacco is a good thing and should be expanded.

What’s the problem?

Taxing e-cigarettes (and other tobacco products based on nicotine is a bad idea.  While I am not an expert on how to tax e-cigarettes, I have been to many meeting with people who are and the consensus is that an ad valorum (essentially a sales tax) on the full price of the device or e-liquid is the best way to go.  Taxing nicotine is too complicated and subject to easy manipulation by the companies.  For example, how do you distinguish between freebase nicotine and nicotine salts, which allow different dosing?  How do you account for the power of the device, which can increase nicotine delivery from the same concentration e-liquid?  Under Proposition 56 e-cigarettes are already being taxed at a rate “equivalent” to a cigarette.  That’s the right thing to do.

This idea is being pushed by the California Medical Association as a way to get more money for their pet programs.  They should just push to increase tobacco taxes across the board rather than wasting time on an idea tobacco tax experts have rejected.

California already has an outstanding media campaign on nicotine e-cigarettes.  The governor is not proposing any new money for tobacco, so the $15 million he is talking about could be diverted from effective programs.  The current media campaign (Flavors Hook Kids, Nicotine=Brain Poison) is already doing a great job.  The campaign is already doing point-of-sale advertising that are already “warning messages.” Don’t mess with success. 

In contrast, launching an aggressive education campaign on cannabis is new and a good idea. So far the State has not done any meaningful public education on cannabis, which is one reason that kids think cannabis is safe and that cannabis has replaced nicotine as the first drug for many youth.  Here the governor is providing more money ($5 million), which is a start.  To be most effective the new cannabis education campaign should be integrated with the tobacco campaign and using complimentary messages based on what we know works for tobacco.  After all, smoke is smoke and much of the lung disease and death has come from vaping cannabis.  Most kids who use cannabis also use nicotine.

The Governor (and the FDA and everyone else) should stop talking about “illicit” e-cigarettes.  As of this date, not a single e-cigarette company has submitted and been granted permission to sell its e-cigarettes in the United States.  They are all illegal.  They are only on the market because FDA has not been doing its job.  That’s why San Francisco (and now, other communities) passed a law saying no e-cigarette could be sold in the City until they are granted an FDA marketing order.  (Juul is trying to overturn this law and all e-cig regulation with its Proposition C initiative; health groups are urging “no” on C.) 

As Governor Newsom has told the press, unlike some eastern and Midwestern states, he does not have the authority to issue an executive order suspending sales of flavored e-cigarettes and he has said he would sign a bill to enact a state ban on all flavored tobacco products.  Senator Jerry Hill introduced a strong comprehensive bill earlier this year, but suspended work on the bill after the chair of the Senate Appropriations Committee forced an obscure amendment on it that likely would have had the effect of exempting Philip Morris from the ban. 

The Governor should specifically endorse the original Hill bill and put the full force of his office behind getting it passed as introduced.  Doing so will mean working with Legislative leadership to keep the bill away from Assemblyman Adam Gray, chair of the Assembly Government Organization Committee, which kills or ruins tobacco control legislation.  (Health groups are now supporting a weak bill Gray is pushing because the health groups forced out the worst of the pro-industry language.  The bill went from horrible to useless.  The Governor could even consider calling a special session to address vaping.   (That’s how Tobacco 21 and several other good tobacco control bills passed a few years ago.)  But a special session would require that the Legislative leadership would commit to passing a clean bill by not allowing Senate Appropriations to slip in any poison pill language and keeping it away from Gray and his GO committee.

The Governor should use his existing authority to ban the sale of all flavored cannabis products.  Unlike nicotine products, where the State cannot regulate the products themselves and ending the sale of flavored products required new legislation, the State can under existing law end the sale of all flavored cannabis products.

Specifically, Governor Newsom should order the California Department of Public Health to end the sale of all flavored cannabis products under their existing authority over manufactured cannabis products. Prop 64 and SB94 gave CDPH regulatory authority over all manufactured products, which includes, as they put it on their website, “nearly all non-flower products.” Under § 40300 of CDPH’s regulations, they already prohibit a number of types of cannabis products (e.g., alcoholic beverages, certain non-cannabinoid additives like caffeine, products that must be refrigerated), so this would almost certainly be within their authority.

In July 2018, Dan Orenstein, Candice Bowling, and I submitted a public comment on CDPH’s proposed cannabis regulations suggesting a prohibition on characterizing flavors. CDPH’s response was “The Department can use its existing authority to determine if specific products are intended to be attractive to minors on a case-by-case basis.”  Based on what we know from tobacco all flavored products appeal to youth.

Better yet, a change to the underlying regulations would be more far-reaching and also probably faster if the goal was to remove an entire class of products (i.e., all flavored cannabis products) from the market. That would go through the standard notice and comment rulemaking process, so the agency would need to propose a new regulation, provide notice of the proposed rule and 45-day comment period, review comments, re-open the comment period if they make any substantial changes, and go through legal review by Office of Administrative Law.   The Governor should get this process going now and order the CDPH to expedite the process.

To ensure that these policies are working, Governor Newsom should provide the needed resources to CDPH to ensure that there is a strong epidemiological surveillance system in place for cannabis that provides the same depth of information for cannabis as we have for tobacco.  While a longer-term investment, high quality data is crucial for understanding what is happening, how programs are working, and making improvements along the way.

Finally, Governor Newsom should direct the Bureau of Cannabis Control to release the $20 million for research it has been sitting on so that we can better understand the evolving impacts of cannabis use.  This money should be administered by the University of California as it does for tobacco (and AIDS and breast cancer) to ensure independence.

These are all things that will better advance Governor Newsom’s stated goals to ensure the most effecting response to nicotine and cannabis vaping crisis than what he has ordered.

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