State Lawmakers Seek To Stop Local Flavor Prohibitions

While the Biden White House continues to pursue a federal prohibition of menthol and other flavored tobacco and vape products, some state lawmakers are taking action to prevent the imposition of similar product bans at the local level. On December 15, Ohio lawmakers passed House Bill 513, legislation that will prevent cities, towns, and counties from enacting ordinances that ban the sale of flavored vape and tobacco products. Governor Mike DeWine (R) has until Christmas to act on the bill, otherwise it becomes law without his signature.

Promotion of improved health is cited in arguments for and against HB 513. Proponents of HB 513 point out its enactment will ensure that Ohio residents who have use flavored vape products to quit and stay off cigarettes will continue to have access to their preferred smoking cessation device. Opponents of the bill, meanwhile, think local governments should be able to impose such product bans. HB 513 stipulates that political subdivisions in the Buckeye State are no longer permitted to “enact, adopt, renew, maintain, enforce, or continue in existence any charter provision, ordinance, resolution, rule, or other measure that conflicts with or preempts any policy of the state regarding the regulation of tobacco products or alternative nicotine products.”

On December 12, the Columbus City Council unanimously approved an ordinance banning the sale of flavored tobacco and vape products in Ohio’s largest city. That ordinance will not take effect in 2024 as scheduled if HB 513 is enacted. Toledo’s three year old ban on pre-filled flavored vape cartridges will also be overturned if Governor DeWine either signs or lets HB 513 become law without signing.

The Columbus ordinance provided the impetus for the passage of HB 513. Representative Jon Cross (R), HB 513 sponsor, said the goal is to stop local governments from “picking winners and losers on what you can and can’t eat or drink or you use,“ adding that he does not want local prohibitions like the one enacted in Columbus “to be a backdoor on an infringement of our rights and freedoms.”

Local officials have come out against HB 513, urging Governor DeWine to veto the bill. “There has been a growing trend of provisions passed by the state legislature that very directly conflict with home rule in Ohio,” said Ohio Mayors Alliance executive director Keary McCarthy. Representative Cross contends his bill does not violate home rule and is about addressing matters of statewide interest, particularly the state’s financial health.

“I think what we have is really not an issue of health and safety,” Representative Cross said. “It’s an issue of revenue and taxes…What the taxpayers don’t realize is, the city of Columbus is probably going to have to tax the taxpayers more money to make up for that loss of revenue.”

“The challenge is cities come to us begging and pleading, ‘Please don’t cut our local government funds,’ but then they don’t realize when they go out and do things like this — they’re cutting tremendous amount of tax revenue,” Representative Cross added. “You can’t get rid of things and decrease your revenue…then come back to us and expect us to fill the coffers.”

Governor Mike DeWine has given opponents of HB 513 reason to be optimistic that he’ll veto the bill. “I’m not going to say what I’m going to do with it, but you might want to go back and look what I did in the U.S. Senate in that area,” Governor DeWine said on December 15. DeWine has supported flavored vape product bans in the past. Supporters of HB 513, however, are optimistic the votes would be there to override a veto, should it come to that.

Five states — Massachusetts, California, New Jersey, New York, and Rhode Island — have thus far have enacted statewide flavored tobacco and vape product bans. California’s statewide ban on flavored tobacco and vape products, which was approved by voters in the 2022 midterm election, took effect on December 21. The first state to enact a flavored vape and tobacco ban, Massachusetts, did so in 2019 and has since provided a cautionary tale for lawmakers considering similar prohibitions.

Massachusetts saw reduced tobacco excise tax collections following the implementation of the flavored tobacco and vape ban, as was to be expected. But it appears that drop in tobacco tax revenue was not due to any significant reduction in smoking or vaping. Jared Walczak, vice president of state projects at the Tax Foundation, noted that Massachusetts’ loss in tax collections translated into neighboring states’ gain:

“In Massachusetts, for instance, after the implementation of a flavor ban (which included menthol cigarettes), tobacco tax stamps declined by 24%. But this looks like far less of a victory for smoking cessation when considering that New Hampshire tax stamps soared 22%, Rhode Island tax stamps jumped 18%, and even Vermont tax stamps went up 6%. Smoking rates didn’t decline with Massachusetts’ menthol ban—smokers just bought their cigarettes elsewhere.”

“The result of the policy has been a fairly stable level of consumption, but a $125 million decline in excise tax revenue,” Tax Foundation’s Ulrik Boesen noted about Massachusetts’ cautionary tale. “In other words, Massachusetts is stuck with the costs associated with tobacco consumption, but without the revenue from taxing tobacco products.”

Representative Cross points out that if HB 513 is vetoed and the Columbus flavored vape and tobacco prohibition is allowed to proceed, that will depress state excise tax collections. So too would the national menthol ban proposed by the Food and Drug Administration in April. “If the Food and Drug Administration bans menthol cigarettes, federal and state governments, combined, stand to lose more than $6.6 billion in the first full year following prohibition,” Walczak wrote in May.

California is facing a budget shortfall of $24 billion and other states are concerned about revenue shortfalls associated with potential economic contractions in 2023 and beyond. Critics of the proposed national menthol ban contend this is not an optimal time to implement a new and controversial federal regulation that will cost state and local governments billions of dollars, but President Biden’s FDA appears determined to move forward with the ban.

The comment period for the FDA’s proposed menthol regulations ended in August. A final rule is expected to be issued in early 2023 and proposed to take effect in 2024. That alleged timeline does not take into account delays due to litigation. In the meantime, the good news is that youth vaping and smoking has plummeted in recent years without heavy-handed flavor prohibitions in place.

The Centers for Disease control reports that youth smoking rates are at historic lows, while youth vaping rates have fallen by nearly a third in recent years. The CDC’s 2022 National Youth Tobacco Survey found 14.1% of high schoolers had vaped in the past month, down from 20.8% in 2018. Given these trends, flavored tobacco and vape product bans may end up being a proposed solution in search of a problem that no longer exists or is being rectified without a government-imposed prohibition.