What Cuomo’s executive order on vaping will and won’t do

Gov. Andrew Cuomo issued an emergency executive action to ban flavored e-cigarettes on Sunday, but experts say it has shortcomings – including that it's not necessarily legal flavored e-cigarettes linked to deaths, that menthol isn't included among the banned flavors and that medicinal marijuana users rely on vaping under state law.

Headlines around a handful of cases of death and hospitalizations linked to e-cigarettes have created fear around the products. "Manufacturers of fruit and candy-flavored e-cigarettes are intentionally and recklessly targeting young people, and today we're taking action to put an end to it,” Cuomo said in a statement. 

New York Health Commissioner Howard Zucker is planning to launch an investigation into vaping products as well. Zucker is holding an emergency meeting with the state Public Health and Health Planning Council, which will vote on the provisions of the ban, and has the authority to enforce the executive order. Once the council meets, the ban could go into effect in the coming weeks.

While Cuomo’s quick and decisive action got him national headlines, there has been some criticism that the ban isn’t actually tackling the root cause of the sudden illnesses, which is most likely black market pens. It also leaves out menthol, which public health experts say should be included. And medical marijuana advocates say the state’s messaging may confuse legal medical marijuana users.

There have been at least six deaths and more than 500 hospitalizations across the country linked to e-cigarette use. Though health officials aren’t exactly sure what’s causing it, early evidence suggests that the dangerous vape cartridges causing deaths are black market pens containing vitamin E acetate, a thickening additive. THC has been linked to cases of severe lung damage, though one particular product hasn’t been singled out. So while the flavored ban is intended to keep young people away from the habit, it doesn’t actually address the cause of the sudden deaths and hospitalizations. 

The frenzy has drawn attention to recent research that’s found that vaping has skyrocketed among teenagers in recent years. According to a December 2018 survey by the National Institutes of Health, 37% of 12th graders have vaped in the past year, up 10 percentage points from last year. The state’s Department of Health found in 2018 that 27 percent of New York high schoolers vape. An official with Gov. Cuomo’s office, speaking on the condition of anonymity, told City & State that there is a dearth of data around vaping, and while the ban doesn’t specifically the sudden deaths, it addresses what data that does exist – which is that more teens are picking up the habit than ever. Any additional executive orders would come out of the Department of Health’s investigation.

This comes as traditional cigarette use among teens is an all-time low, under 10%, down from 36% in the late 1990s. So there’s a concern that young people have just traded one unhealthy addiction for another. “We have eroded our progress on this in just 2-3 years,” said Lisa David, president and CEO of Public Health Solutions. 

Evidence shows that vaping is less harmful than traditional cigarettes, mostly because they contain fewer chemicals, according to Johns Hopkins Medicine. However, vaping is still considered "bad for you," and David isn’t buying that it is a proper cessation tool for cigarettes.

“If these products were truly successful at smoking cessation, then these companies would do research and submit that to the FDA. But they haven’t,” she said.

Cuomo is targeting flavored e-cigarettes because they are considered popular among teenagers, and e-cigarette manufacturers have been accused of marketing particularly to younger people. The ban doesn’t include menthol-flavored e-cigarettes, with state officials noting that menthol flavors are generally used by people trying to kick their cigarette habit. However, Jason Conwall, a spokesperson with Cuomo’s office, said they “are are still considering menthol and may still ban it after review.”

In an interview before Cuomo’s executive order on Sunday, David agreed with the idea of banning flavored e-cigarettes but noted that it won’t mean much if menthol isn’t included, as it’s known to be popular with young people. “It’s what young people – particularly young people of color – start with,” David said. 

Since the rash of mysterious deaths and illnesses, Cuomo has come out hard against e-cigarettes and vaping. But some health policy experts are concerned that his quick ban on flavored products is a bit misguided, as it isn’t addressing the actual cause of the dramatic illnesses and deaths, and might drive young people deeper into the black market, or to take up traditional cigarettes. “If you have these really young kids and teens getting hooked, then that’s not good," said Bill Hammond, director of health policy at the Empire Center for Public Policy. "But the first step would be to do some research, have a public hearing, get the best expert evidence that you have. Instead of reacting to headlines, find out what’s really going on and proceed with proposed regulations.”

Mark Meaney, a lawyer who specializes in e-cigarettes with the Public Health Law Center at the Mitchell Hamline School of Law in Saint Paul, Minnesota, said that any ban on flavored tobacco products has to include all flavored tobacco products. “We have to look at this from all angles, because banning one could lead to another kind of addiction,” Meaney said.

Hammond noted that the British National Health Service tightly regulates e-cigarettes. As a result, the country promotes vaping as a safer alternative to traditional cigarettes. Brands that promote themselves as an alternative to smoking have to undergo licensure as medical devices. Even those that don’t still have to pass European Union standards for safety and quality. In the United States, there is no federal quality standard for e-cigarettes, according to the American Academy of Pediatrics. “This is why there needs to be a regulated market where we can do testing controls,” said David Holland, executive and legal director of Empire State NORML, an advocacy group working to reform marijuana laws.

Cuomo has been vocal against vaping in general in the past week, urging all New Yorkers to drop the habit. “What we're saying here is we don't know what a lot of these substances are. And you have an alarming rate of illness,” Cuomo said at a press conference last week. “And our advice, our recommendation ... if you don't know what it is that you are smoking, don't smoke it."

This approach to vaping is “throwing the baby out with the bathwater,” Holland said. The 106,649 New Yorkers enrolled in the medical marijuana program may look for alternatives to vaping if they’re spooked by recent headlines. However, their options are limited. Other than vaping, New York’s medical marijuana program only allows for ingesting the product orally through tablets, capsules, sprays or through topical lotions. Smoking marijuana isn’t allowed and smokable marijuana isn’t sold by the state’s licensed medical marijuana dispensaries.

“As the Department of Health Commissioner has made clear there have been no adverse events related to vaping among certified patients in the New York state medical marijuana program since the investigation began. However, out of an abundance of caution, we are also urging patients in the program with any questions or concerns to consult with their health care providers on potential alternatives to vaping products while the investigation continues,” reads a statement on the medical marijuana page. A state official speaking to City & State on background said that they don’t plan on revisiting approved medical marijuana products, but that there have been no illnesses from anyone in the program.

“We would have less fear about black-market cartridges if we had some kind of testing protocols and there could be some seal of approval for products in the medical marijuana program,” Holland said. 

The New York State Department of Health told City & State in a statement that it doesn’t keep statistics on the number of people who use vaporizers versus creams or capsules. Holland says anecdotally he believes that most people do vape, as it’s the best way for people with PTSD or chronic pain to ingest the product.

New York will be the second state to ban flavored e-cigarettes after Michigan. Last week, President Donald Trump also said he plans to explore banning the sales of flavored e-cigarettes. 

Correction: An earlier version of this story misspelled Mark Meaney's name and misidentified David Holland's organization.