Why ecig flavor bans are such a terrible policy

by Carl V Phillips

I suspect none of this is anything that my regular readers need to have explained. But I have been thin in my postings and an old friend asked for a clarification on this, so I thought I would do it. I imagined a Twitter thread and realized it is way too much for that. Also, I realized that perhaps I could organize the various bits in a way that helps clarify.

First, are the overarching first-line reasons why any policies that intentionally cripple vaping are harmful:

1. Interesting flavors are an enticement for people who smoke to switch to vaping and stay switched. We have overwhelming evidence that most switchers prefer interesting flavors. We have very solid evidence that many switchers would not have switched if interesting flavors did not exist, and good reason to believe that many would switch back if those flavors ceased to exist.

(Note: As anyone familiar with this subject knows, “flavors” in this context never means all flavors. Every e-cigarette and >99% of vaped liquid, even if it tastes exactly like a Marlboro, includes a crafted artificial flavor. Instead the word is used to mean “any flavor the does not try (usually poorly) to imitate the taste of a cigarette”, sometimes with and sometimes without the inclusion of menthols. I tend to abbreviate it “interesting flavors”, even though that too is far from precise, just because I cannot stand to use words that endorse and reinforce ignorance.)

2. But often overlooked here is that even if someone is inframarginal (will not change their behavior as a result of the policy change), the loss of a preferred option is harmful. That is, someone who keeps vaping, or goes ahead and switches, using non-interesting flavors, but who would have preferred to use interesting flavors, suffers a loss of welfare. I realize that tobacco controllers consider hurting product users to be the goal, but normal people consider gratuitous harm to be, well, harm.

3. In addition, this is just ugly public policy of the worst kind. It is being done lightly and flippantly, with less attention and care that might be devoted to changing the highway budget by 10%. Indeed, the political discourse around these bans feels like that around some mildly controversial but completely inconsequential resolution, like deciding to no longer recognize Columbus Day or to remove a Confederate statue from the state house grounds. But this is not just a minor adjustment, let alone a virtue show. This is taking away a much beloved choice from hundreds of thousands of adults, and criminalizing those who continue to pursue it. This type of public policy has gravitas that is perhaps second only to deciding to go to war.

Treating such action as trivial, giving no consideration to the costs, not listening to those who will be hurt, and clamping down with police powers is exactly the worst kind of government behavior that habitual detractors of government try to portray government as always doing. It actually does not happen all that often. But it should not happen ever.

Second, there are the flaws in the entire stated premise of these bans:

4. There is no reason to believe that interesting flavors substantially increase teenage vaping. Really. There is no such evidence. I would cite something and explain why it is not compelling, but there is not even anything to do that with. The “evidence” consists of unsubstantiated speculation being repeated so many times that people start to think it is fact. Well, we have basic economic theory that says if you decrease the quality of something (e.g., by eliminating preferred flavors) then fewer people will consume it. But how many? Probably not very many. After all, it is pretty clear the same kids who are devoted vapers would have been smoking had they not found vaping instead; dedicated vaping has been replacing dedicated smoking by approximately 1-for-1.

Someone who wants to use (really use, not just try once) a drug will be deterred only trivially by taste. If they settle into using the drug, they will start to associate the taste with it and come to like the taste, however nasty it is to the normal human palate. Anyone who does not get that undoubtedly falls into the category of very weird people who have never smoked a joint.

I suspect that the germ of this bizarre conviction that flavors are the difference between vaping being a popular source of teenage rebellion / drug-seeking / boredom alleviation / etc. is this image: An innocent(!) young white teenager at a house party is handed a vape and told “hey, try this — it’s strawberry! yum.” And so s/he takes a puff. But who cares? It is not like this is going to create a devoted nicotine user from someone with little interest in nicotine. Not in a world where strawberries and strawberry-flavored candies exist. It is a novelty to try it, not strawberry-seeking behavior. (Note to parents who freak out about this image: You might want to consider what your “innocent” kid has done in terms of “hey, try this” with her/his genitals.)

5. Meanwhile, non-interesting flavored vapes taste like cigarettes (well, they sort of taste like cigarettes). Did I mention that people come to like the flavor they associate with their drug of choice, even if it is inherently rather nasty? The concern that normal people have about teenage vaping is that it will cause something that is actually harmful: teenage or young-adult smoking. (The non-normal people in tobacco control are annoyed by someone using any product, even if it is approximately harmless. Their useful idiots think that vaping is harmful. But no one who is concerned about health outcomes and understands this topic really cares whether someone starts vaping, so long as it does not cause smoking.)

Trying to make teenage vapers become used to the taste of cigarettes, by banning the other flavors, seems like a very good way to smooth the path to switching to smoking. Do we have good evidence this will happen much? No — just like there is no evidence that the interesting flavors cause much vaping. But on balance, it seems extremely plausible that this effect will be greater than the reducing-uptake effect. Or it might cut the other way a bit, though each new smoker creates health costs that dwarf a handful of new vapers. But the real point is that it is very plausible that this policy will do more harm than good in terms of its intended goal, to say nothing of all the other harms it causes.

Third is the pesky problem that banning something does not just make it disappear:

6. Everyone in this space is aware of the recent outbreak that has been attributed to black-market cannabinoid cartridges. Wait, what sorcery is this? A black market? Do such things exist? Strangely, in the eyes of tobacco warriors, apparently they do not, despite the fact that they could ask their drug war brethren about them or, I don’t know, just read a little bit.

The outbreak is helping propel the explosion in flavor ban policy activity, even though it obviously in no way argues for such bans. The equally obvious irony is that it argues against them. People who want flavors are going to start doing it themselves. Black markets will spring up, via local manufacturing (trivial to do) or illegal self-importing (also trivial). When this happens, the probability of a deadly bad batch, as in the cannabinoid case, increases by many orders of magnitude.

7. Even absent the nightmare scenario, consider what happens when black markets improve: Black markets do not select (via invisible hand stuff) for the best quality — which includes using the safest ingredients and manufacturing — so much as they do for willingness to take risks and skill at developing the right “connections”. They are not regulated, obviously. (I have tweeted a dozen times in the last two weeks ridiculing someone who suggested that better regulation would have prevented the cannabinoid cartridge tragedy. Guess what: if you ban something, it becomes very difficult to regulate it.) Moreover, black marketeers are not desperately interested in preserving their brand equity and avoiding liability, which are really the most important “regulations” in the market; if something goes wrong, they just disappear and/or rebrand.

More central for the policies under discussion, black marketeers are seldom all that picky about who they sell to. In a legal market for vapes, there are strategies for squeezing the pipeline to teenagers, who cannot legally acquire the products. These are not perfect, but the options are not absent or useless. For a thriving black market, they are absent.

Fourth, as a technical corollary to the above observations…:

8. Flavor bans are a dominated strategy. That is, whatever it is someone is trying to accomplish, these policies are not the best way to do it. If someone wants to promote population health, such restrictions are obviously counterproductive. If someone wants to promote population health among only the young (which mostly means preventing smoking), it seems unlikely that the results will be positive, let alone better than any alternative. If the goal is simply to reduce teenage vaping (regardless of the effect on smoking and on adults), then a complete ban obviously makes more sense; it is a lot easier to enforce and there will not be the option of just substituting the still-legal flavors. There simply exists no question along the lines of “What is the best way to accomplish X?” for which “Ban interesting vape flavors.” is the answer.

Fifth, one more tangential observation that resonates with some people although not everyone would agree it is a problem:

9. The cigarette-flavored e-cigarette market is dominated by the much-hated big businesses in the space. The small businesses (vape shops in particular, and all the benefits they create) would be eliminated. The big players would pick up the slack.

In conclusion, there is simply nothing good to be said for these policies. Really, nothing. To reiterate, there simply exists no question along the lines of “What is the best way to accomplish X?” for which “Ban interesting vape flavors.” is the answer.