State Legislature mulls ban on menthol cigarettes, vapes

Associated Press This May 17, 2018, file photo shows packs of Kool menthol cigarettes at Ted's Market in San Francisco.

ALBANY — As the rate of teenage vaping of nicotine and marijuana soars across New York, state lawmakers are scrambling to package bills to address not only that epidemic but cigarette smoking as well.

Several Democratic state senators are also eyeing a permanent ban on menthol cigarettes. They contend the "menthol loophole" needs to be shut in order to stop the tobacco industry from targeting youth, African Americans, women and gays with products that have potentially serious health consequence.

At a legislative hearing this week, Dr. Brad Hutton, the deputy state health commissioner, said trying to choose whether vaping or regular smoking poses the biggest health threat is a challenge.

"I think the analogy is like comparing two bombs and asking which is more explosive," Hutton said. "They are both very dangerous to health."

On Tuesday, Sen. Brad Hoylman, D-Manhattan, told CNHI he will push for a statewide ban on menthol cigarettes.

"The ban on menthol cigarettes goes hand in hand with a ban on flavored vapes — the idea being we want to dissuade young people from picking up e-cigarettes or menthol cigarettes, and one way to do that is with a comprehensive ban on flavors," Hoylman said.

Hoylman discussed his legislative agenda after Hutton updated lawmakers on progress in an ongoing laboratory investigation into the cause of the outbreak of more than 150 lung illnesses across the state that have been associated with vaping.

One patient, a 17-year-old New York City resident, recently died from a vaping related illness, state officials said.

While scientists have been analyzing how the inhaling of castor oil, Vitamin E acetate and other materials found in some vapes impacts lungs, the precise cause of the illnesses remains a mystery, Hutton said.

"There continues to be many hypotheses for what could be causing these illnesses," said Hutton.

The latest discussions focusing on health problems linked to vaping and smoking come less than a month after the Cuomo administration enacted a 90-day ban on the sale and distribution of all vaping flavors except tobacco and menthol.

The enforcement of those rules has been put on hold in response to a court challenge from an industry group, the Vapor Technology Association.

Nevertheless, due to concerns about the health consequences from using any flavor of vape, Hutton said the administration is now "certainly looking to broaden the existing emergency regulation to include menthol."

Hutton and representatives of anti-smoking groups also questioned the depiction of e-cigarettes as smoking cessation devices. They described them as another way to deliver nicotine to users, suggesting they are unlike lozenges and gum products used to help smokers kick their habits.

The use of vaping products by high school students has jumped dramatically in recent years, according to data from the New York State Health Foundation. It found that more than 50 percent of high school seniors tried vaping in 2018.

On a related legislative front, proposals to legalize adult use of marijuana in both flower form and vaping products are back on the table in Albany after getting bottled up in the latest session.

But Dr. Arthur Fougner, president of the Medical Society of the State of New York, said all forms of vaping and smoking should be discouraged.

"The problem with data on long-term vaping is that there is none — because it's too new," Fougner told lawmakers.

The physician noted an investigation into vaping-related lung injury by the U.S. Food and Drug Administration is ongoing.

Until that probe is completed, he said, "any proposed adult-use cannabis program, especially with a vaporizer product, be put on hold."

Advocates for the e-cigarette industry, meanwhile, are warning lawmakers that if all flavored vapes are banned on New York, people who have been using the product to quit regular cigarettes will get them from the unregulated black market.

While some counties have increased the legal age for the purchase of cigarettes and e-cigarettes to 21 on their own, legislation enacted this year will set the statewide purchase age at 21 beginning Nov. 13.

Joe Mahoney covers the New York Statehouse for CNHI's newspapers and websites. Reach him at

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