Can the Legislature get out in front on vaping policy?

In 43 years of Wyoming journalism I’ve learned that you never know what you’re going to get when you show up to a legislative committee meeting.

 The surprise gem at the Joint Interim Revenue Committee’s recent meeting in Lander was a comprehensive three-hour mini-course on electronic cigarettes and vaping.

Tasked by the Management Council with considering whether and how to tax e-cigs, Revenue’s lawmakers have found themselves wrestling with an unexpectedly nuanced topic.

 E-cigarettes are marketed as an alternative source of nicotine that helps people quit smoking, and in so far as it replaces smoking combustible cigarettes, vaping is a clear public health upgrade.

But it’s not, by a long shot, just existing smokers who vape. The U.S. surgeon general has said that vaping is an “epidemic” among American youths and several studies have shown that, while much healthier than old-school tobacco products, e-cigs bring their own significant hazards.

Teachers and administrators, along with school safety officers from Pinedale, Riverton and other communities flooded the committee meeting room to express deep concerns about students vaping at school.

And then there’s the economics of it. Also testifying were owners of vape shops, which have spread like wildfire throughout the state, particularly in the two largest cities, Cheyenne and Casper. These business people with brick-and-mortar stores are concerned about adolescents using their products, which are illegal for anyone under 18.

But they are also worried about the effects of special taxation on the products they sell. Their basic message: taxes will hurt business,  reduce profits, cost jobs and perhaps even close their shops all without reducing use because consumers can simply buy their vaping products tax-free online.

It’s a dilemma for legislators who have been thrust into a controversy that doesn’t have easy solutions. In fact, deciding whether to tax e-cigarettes and dealing with inherent health risks is one of the most tangled tasks I’ve ever seen the Legislature undertake. Whatever action it chooses will likely leave some combination of adult users, educators, the industry and the general public upset.

During the last session, the House rejected a bill that would have increased taxes on regular tobacco products like cigarettes and snuff. That measure also included a new tax on vaping products.

That debate, though, led to the Legislative Management Committee assigning the issue to the Revenue Committee. House Speaker Steve Harshman (R-Casper), a high school teacher and football coach, said it is the panel’s highest priority. For that reason, Revenue Co-chairman Dan Zwoniter (R-Cheyenne) took care to make certain that all sides were heard.

The e-cigarette industry, vape shop owners and health organization representatives all told legislators that the vast majority of e-cig purchases are made online. Youths can easily bypass efforts to keep them from buying the products by lying about their age instore or online or obtaining them from legal-age classmates and adults.

Teachers expressed particular concern about JUUL (pronounced like jewel) vape products, a brand that so dominates the youth market that it’s name is used as a verb and, like Kleenex, or Chapstick, is used as a stand-in for its entire class. Like other e-cigarettes, the jury is out on the health risks they pose, as well as any tobacco-cessation benefits. Many health organizations and universities are conducting their own studies about vaping.

JUUL modules, which resemble computer flash drives, and similar products that are flooding the market have grabbed the attention of the FDA. No doubt to keep federal regulators at bay, the JUUL manufacturer has voluntarily stopped social media promotions and discontinued its most kid-enticing fruit and candy flavors.

E-cigarettes contain nicotine, which is addictive, but they do not have tar and a host of additives that cause cancer and other diseases.

JUULing gives users as much  nicotine as a 20-cigarette pack. Since they are small and plugged into a computer’s flash drive port to heat and charge, teachers say their students can easily use them to vape anywhere, even in class, and not get caught.

If underage students are busted by school safety officers, the initial fine is only $50. A subsequent offense will earn them a $250 ticket. Teachers testified that the fines are not high enough to keep their students from vaping.

In an FDA report last September, Commissioner Scott Gottlieb said, “While we are committed to advancing policies that promote the potential of e-cigarettes to help adult smokers move away from combustible cigarettes, that work can’t come at the expense of kids. We cannot allow a whole new generation to become addicted to nicotine.”

Nicotine is not good for people with heart problems or pregnant women. And some brands of vape liquid do contain dangerous, potentially carcinogenic, additives.

But since e-cigs don’t burn, people are generally not exposed to toxins. A 2015 expert review by Public Health England estimated they are 95 percent less harmful than cigarettes.

That hardly gives them a health risk-free pass, though. A 2016 study in the journal Pediatrics found that teens who never smoked but used e-cigs were six times more likely to try cigarettes compared to those who don’t vape.

According to the Legislative Service Office, nine states and the District of Columbia now tax e-cigarettes.

Jacob Davis, owner of Vapors of Riverton, told the committee that e-cigarette taxes in Pennsylvania resulted in 140 vape stores closing.

Jason Mincer, government relations director of the American Cancer Society’s Cancer Action Network, supported a $1.50 tax on the equivalent of a pack of cigarettes. He said e-cigs “are strongly linked to the use of other tobacco products.”

In the face of dueling statistics and personal testimony, what did the Revenue Committee decide to do?

The panel voted to have its staff draft a bill that would consider several options: raising the fines for youthful offenders and adults who provide vaping materials, increasing the legal age for using tobacco and vaping products from 18 to 19, levying a wholesale value tax (at a rate to be determined) and the total ban of online sales and delivery of nicotine-infused products to Wyoming.

The latter is the most far-reaching proposal, since it would also affect adult users of vaping products. But it would also be a boon for Wyoming-based vape shops, and perhaps make it easier for them to cope with any new wholesale taxes since they would no longer face online competition.

House Minority Leader Cathy Connolly (D-Laramie) said banning online sales “is the one [bill] that will make the difference” to curb teen vaping.

Several school district administrators described vaping at their schools as epidemic. Rock Springs High School has suspended 95 students so far this year, and in Pinedale 70 percent of out-of-school suspensions are for using nicotine-infused products.

It’s the Spring Membership Drive! Support award winning journalism with a tax deductible donation today.

“I was particularly concerned to hear that so many kids are being put in detention for e-cigarettes,” Connolly said. “I want them in school. I don’t want them punished.”

The committee made the right choice to consider all these alternatives, and a few more may be offered at future meetings. There are no instant answers when dealing with this complex issue, which affects so many people in the state. Voting on any of these proposals at this early stage in the discussion would have been wholly inappropriate.

Now it’s time for the committee and the rest of us to do our homework and look for the best solutions for both tax and health-related policies. The Lander meeting served as a primer, but it only tapped some of the problems and potential benefits of e-cigarettes. I’m anxious to learn more.