CASAA / CVP testimony re Massachusetts ecig regulation

by Carl V Phillips

As those of you familiar with U.S. THR advocacy know, for years CASAA provided written — and whenever possible, in-person — testimony for many of the major proposals for anti-THR regulation (and the unicorn-rare bits of pro-THR regulation). However, due to the absolute deluge of such proposals now, and the growing body of politically activated e-cigarette enthusiasts (not so much popular support for other paths to THR, sadly), we have chosen to concentrate on leverage, educating and empowering our members to give effective testimony at the state and local level (which we also always did).

We are able to provide our own testimony for some major proposals occasionally, however, as we did for Massachusetts this week. This one received such attention because it was actually not a terrible proposal (see our Call to Action), and it was put forward by someone (the state attorney general) who is not some clueless ANTZ mouthpiece; she appears to be smart enough and confident enough to do the right thing in spite of ANTZ political influence. The major harms the proposed regulation would inflict on adult vapers or would-be vapers, and thus on real public health, seemed to be accidental, not intentional as they are with most ANTZ-sponsored regulations. Thus we made the effort to try to help fix it by providing hearing testimony and submitting a written statement that included that plus a mark-up of the proposed regulation with our proposed amendments.

What follows it the first part of our written testimony, which is about 98% the same as the hearing testimony I delivered. For those who want to drill down to see the full submission, with the details and the mark-up, here is a pdf of our full written submission: CASAA comment on MA 940 CMR 21.

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The following comments on Proposed CMR 940 21.00 are submitted on behalf of The Consumer Advocates for Smoke-free Alternatives Association (CASAA). They consist of a written adaptation of the oral testimony I gave in Boston on 23 April 2105, followed by our suggested markup of the regulation, per the suggestion that was made to me at the hearing. The latter consists of first the explanation of the changes made (overview and explanation) and then the marked-up text of the regulation.

CASAA is a nonprofit public health NGO. It is the leading representative of the interests of consumers and would-be consumers of low-risk tobacco and nicotine products; it is a membership organization with over 50,0000 members; it does not represent the interests of industry.

In addition to my current role as CASAA’s Chief Scientific Officer, I am also a former professor of public health, and I have been researching tobacco harm reduction for longer than almost anyone. I have been researching e-cigarettes since they first entered the market. Tobacco harm reduction is the substitution of low-risk alternatives for smoking, and it is the most promising way for many smokers to avoid the risks from smoking. The following comments are based on my own expertise as a researcher and familiarity with (to my knowledge) all the relevant scientific literature, as well as CASAA’s collective expertise.

The basic scientific facts about e-cigarettes are simple and overwhelmingly supported by scientific evidence:

• They are roughly 99% less harmful than smoking.

• They pose no conceivable risk to bystanders.

• Their use is almost completely as a substitute for smoking.

• In the order of one million Americans have quit smoking by switching to e-cigarettes.

Moreover, many former smokers who quit with e-cigarettes had tried every other method and failed repeatedly, thinking they were doomed to smoke until they died. You cannot hear their stories and not be moved and inspired. I would encourage you to visit CASAA’s Testimonials Project (http://testimonials.casaa.org/) and read personal accounts of over 4000 people that have successfully employed tobacco harm reduction.

So how does this relate to the regulations under consideration? After all, this is not one of those unconscionably terrible proposals that we often deal with that would try to ban or impose massive restrictions on e-cigarettes. This regulation would, for example, quite rationally impose federal packaging standards, which we strongly support because it is genuinely beneficial to consumers and avoids creating a patchwork of different state regulations.

The reason I emphasize the huge health benefits that have been created by e-cigarettes is that they show e-cigarettes are a proven effective way for many smokers to quit smoking, and that switching to e-cigarettes is basically as beneficial as quitting entirely. But this is not always an easy transition and public policy should be designed to make it easier rather than more difficult. We would like to think that learning about the low risk alone is enough to get people to switch, but for many, what seems like a small barrier dooms them to keep smoking. We understand that most provisions of the regulation are designed to reduce access by teenagers (which I address below), but a few of them also interfere with adult smokers using e-cigarettes to quit smoking.

For example, the higher quality e-cigarettes (which we usually refer to as “open systems”), the ones that are larger than cigarettes and sold by specialty merchants rather than in convenience stories, can be a bit complicated to use. Nothing that cannot be overcome, obviously, but it requires some mentoring as well as some trial and error to find hardware and liquid that works for the individual. A useful approach to this is being able to try the products in a vape store (e-cigarette specialty retailer) before purchasing. Without that, many smokers who would have quit smoking will buy an e-cigarette, use it wrong or not get what is best for them, and give up on it and continue smoking. We have heard this story over and over. Thus, we strongly urge you to remove the prohibition on sampling or free product for adults.

Similarly, convenient access to internet purchasing is crucial for the many residents of Massachusetts who do not live near a vape shop. This is generally not as good for smoking cessation as a retail store, but it is certainly better than no access. So why throw up needless barriers? Instead of requiring a particular age-verification method, one that creates extra steps and might cause some merchants to just not bother with Massachusetts consumers, there are numerous established methods of certified third-party age verification for online commerce. Broadening the allowable methods will benefit consumers without in any way weakening what the regulation accomplishes. We urge you to allow these more efficient age-verification methods.

Our greatest concern is about the provision that localities can impose stronger regulations than the Commonwealth. We think this is a serious problem that will create a patchwork of conflicting regulations that will harm consumers by driving away the supply. A town that imposes an idiosyncratic packaging requirement might as well be issuing a sales ban, since manufacturers are unlikely to do a special production run for that county. Furthermore, local governments generally do not have the expertise to deal with complex scientific issues like this, and thus many get tricked into doing the bidding of whatever special-interest captures someone’s ear, at the expense of their citizens. Thus, we urge you to declare that these regulations preempt more onerous local laws, and at the very least that it preempt those which provide no apparent benefits and impose extensive costs (details below).

You have heard and will continue to hear claims from anti-e-cigarette activists that include:

• we don’t know how harmful they might be;
• they are highly dangerous; they are highly addictive; we don’t know what is in them;
• there is no regulation;
• they are a gateway to smoking;
• they include flavors that are designed to attract children;
• and, worst of all, there is no evidence they help people quit smoking.

Every last one of these claims is wrong. Not debatable. Not uncertain. But clearly wrong. Not one of them is supported by evidence and indeed, there is overwhelming evidence that every single one of the claims in this litany is false.

We know what is in e-cigarettes, and we have ample science that shows that it poses minimal hazard. A particular speaker may personally not know some of these scientific facts, of course, but that is because he is talking about something he does not understand. The experts do know.

It turns out that nicotine by itself is generally regarded by experts in that area as not addictive, and there is no evidence anyone has ever gotten hooked on e-cigarettes. E-cigarette users often report that though they did not think they could ever quit smoking, once they used e-cigarettes exclusively for a while, they found they could take it or leave it. There is literally no reason to believe that the availability or use of e-cigarettes would turn a would-be nonsmoker into a smoker. There is literally no evidence that interesting flavors are attracting children who would have otherwise not have tried an e-cigarette, but overwhelming evidence that adults like them and very compelling evidence that their availability was what allowed many adults to completely quit smoking.

And, in case it is not obvious, each one of the millions of people worldwide who have quit smoking using e-cigarettes is evidence that they help people quit smoking. The many who have reported that they tried everything else first, which did not work, are more compelling still. It boggles the mind that anyone would even try to sell the patently absurd claim that there is no evidence.

Those out-and-out falsehoods are recited either by people who were told something and who blindly repeat it without having any idea whether it is true, or by special interests with hidden agendas that do not include protecting the health and freedom of consumers. They count on never having to stand up to cross examination, because their experience is that no one is going to push back against anti-tobacco or anti-nicotine rhetoric, no matter how blatantly unscientific. If cross examined, half of them could not even define their terms or actually explain the scientific claims they are making; almost none of them could tell you what the scientific record shows beyond maybe cherry-picking one result.

They want you to think of the children. That is perfectly understandable. But keep in mind that of all the substances teenagers experiment with, smoke-free tobacco and nicotine products are probably the least hazardous. Also keep in mind that the statistics you have seen about teenagers and e-cigarettes are based on surveys that ask if someone has ever taken so much as one puff of an e-cigarette, perhaps one that did not even contain nicotine. A “yes” answer has been misconstrued, by those who seek to manipulate rather than inform policy, as someone being “a user.” To the extent that we can estimate actual use by teenagers rather than occasional toying, it appears to be quite low and overwhelming concentrated among those who smoke or already quit smoking. That is, teenagers are mostly using e-cigarettes for the same good reasons that adults are, as a low-risk substitute for smoking.

That said, CASAA supports regulations that prohibit sales to minors for obvious reasons. However, everyone needs to be realistic and recognize that there is no way to make this a complete barrier. Teenagers who want to consume cigarettes and alcohol have no trouble doing so despite minor sales bans; those who want cannabis and many other controlled substances also find them, despite blanket sales bans. Thus, it makes no sense to impose restrictions on adults based on an unsubstantiated guess that they might make it ever-so-slightly harder for teenagers to get the products. Even the relatively minor restrictions in the proposed regulation – let alone the draconian ones that some localities will impose – will be enough to cause at least a few smokers who would have switched to not do so, which will kill people. That is what is at stake here.