Commentary

Tobacco harm reduction–not prohibition–is the path forward for Maine

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Last month, the federal Food and Drug Administration (FDA) announced it is developing “product standards to prohibit menthol as a characterizing flavor in cigarettes and prohibit all characterizing flavors (other than tobacco) in cigars.”

This is trodden ground for Mainers. Even before President Joe Biden signaled this move, nanny-state politicians and west coast activists have tried to import more radical policy into the Pine Tree State, with some success. 

Just three years ago, Maine lawmakers passed and Gov. Mills signed into law a more-than-doubling of the tax on tobacco products other than cigarettes from 20% to 43% of the wholesale price. Today, Maine’s tobacco tax is tied for the 16th-highest in the nation. If the prohibitionists had their way this year, Maine would have the fifth-highest in the country, behind only DC, New York, Rhode Island, and Connecticut, in addition to a counterproductive flavored product ban. 

Funded by the California Department of Public Health, the organization Flavors Hook Kids has mounted, and continues to mount, a huge lobbying blitz across Maine to ban many nicotine-containing products, not only some cigarettes and cigars like the FDA. Framing their work as advancing social justice, the group has pushed for state and local bans on products like e-cigarettes, also known as electronic nicotine delivery systems (ENDS).

But despite their best efforts to influence members of the 130th Maine Legislature, lawmakers did not enact any further restrictions or tax increases on tobacco or nicotine products before session ended in early May. After realizing that their plans were unlikely to be voted on by lawmakers in Augusta this year, these California-funded activists turned their sights to Maine localities. Since late last year, three Maine cities have passed local bans on flavored tobacco and nicotine products: Bangor, Portland, and Brunswick.

ENDS have been shown to help reduce smoking, the most harmful method of ingesting nicotine. The US Centers for Disease Control and Prevention (CDC) notes that they “have the potential to benefit adult smokers who are not pregnant if used as a complete substitute for regular cigarettes and other smoked tobacco products,” and the United Kingdom’s National Health Service even allows providers to prescribe ENDS as a medical product.

Clearly, there is no safe tobacco product. All of them carry associated risks, but medical science has shown that smoking combustible products like cigarettes and cigars are far-and-away the most harmful. Not only is smoking linked with higher rates of various types of cancers, the negative health effects of second-hand smoke are also well-known.

As Michael Russell, psychiatrist and developer of nicotine gum famously stated in 1976, “people smoke for nicotine, but they die from the tar.” This is the embodiment of the public health philosophy known as harm reduction, which recognizes that adults will ultimately use harmful products, whether legal, illegal, or somewhere in between. Reducing harm from nicotine and tobacco use means allowing the market to provide safer alternatives, ones that expose users to less tar and carcinogens in order to maintain their dependence.

In 2018, public health researcher David Abrams and colleagues developed a method for measuring the relative dependence, appeal, and harmfulness of various nicotine products. Findings were published in the April 2018 edition of the journal Annual Review of Public Health looking at combustibles, ENDS, smokeless tobacco, and nicotine-replacement therapies (NRTs) like gum and patches.

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Researchers found that, although e-cigarettes and traditional cigarettes both contribute to high dependence rates among their users, they also similarly appeal to users. The vast difference in the two forms of nicotine delivery are their relative harms to users and passerby. Despite what modern-day tobacco prohibitionists claim, the popularity of nicotine vaporizers is not a policy failure; rather it is a signal of successful harm reduction. Indeed, it is the non-tobacco flavored vape products which have been shown to contribute the most smoking-cessation benefits to users. A 2019 NIH study found that users who switch from combustibles to ENDS are much more likely to “rate flavors as important to their ENDS use.”

In this most recent legislative session, nanny-staters like Representative Rachel Talbot-Ross of Portland, Representative Michelle Meyer of Eliot, and Senator Ben Chipman of Portland, among others, attempted to yet again double the tobacco tax with LD 1693 and enact an outright ban on all flavored tobacco products (including ENDS) with LD 1550.

Thankfully, neither bill received a floor vote in either the Senate or the House, and thus expired upon adjournment of the 130th Legislature. Blind to the reality playing out in our backyard, many Maine Democrats pushed these half-baked policies for months. Somehow, they claim that creating more illicit goods and deepening state-by-state tobacco law disparities advances social and racial justice.

In June 2020, Massachusetts implemented a ban on flavored tobacco products in an attempt to protect youth. After a year, regional tobacco usage had not changed; sales just moved across the border, primarily to low-tax New Hampshire. Seemingly, the only effects were substantially lower earnings for Massachusetts store owners and employees, and a 26% drop in tobacco excise tax revenue over the last two fiscal years.

As for the effects on youth, another study published in the Journal of the American Medical Association (JAMA) Pediatrics found that a local flavored tobacco and vape ban implemented in San Francisco also did not work, and instead pushed youth to use traditional cigarettes. Summarizing the findings, YaleNews writes, “after the ban’s implementation, high school students’ odds of smoking conventional cigarettes doubled in San Francisco’s school district relative to trends in districts without the ban, even when adjusting for individual demographics and other tobacco policies.”

In its most recent annual report published in March 2022, the Massachusetts Multi-Agency Illegal Tobacco Task Force notes that “the Commonwealth’s high tax rates on OTP [tobacco products excluding cigarettes] relative to other states provide smugglers an incentive to import such products from low-tax states and sell them to in-state buyers willing to illegally evade payment of the applicable Massachusetts tobacco.” This too contributes to societal degradation, as law enforcement resources have been redirected from serious crime to policing failing prohibitions.

Analyzing tobacco policy across the northeastern US, researchers from R Street, a DC-based think tank, found that every state but Rhode Island taxes ENDS but many of these “appear to be at parity with or higher than those levied on combustible cigarettes.” Why is state policy incentivizing consumers to choose a more harmful product?

In an interview with Forbes, Michael Pesko, economist at Georgia State University and an author of an NIH-funded study published in January 2020 estimated that “for every e-cigarette pod no longer purchased as a result of an e-cigarette tax, 6.2 extra packs of cigarettes are purchased instead,” noting strong product substitution. Pesko and colleagues found that for a 10% hike in ENDS prices, sales dropped 26%, but 11% more combustible cigarettes were sold.

The math is simple: the more nicotine users who switch from combustible cigarettes to vaporizers, the more lives saved.

Despite strong economic, medical, and social rationale against them, an unmoored public health philosophy and a mindset that state action can solve every social or cultural problem drives these hard-headed activists to keep pushing. Though well-intentioned, their ideas are just plain bad policy, incentivizing the use of more harmful nicotine delivery methods over safer ones.

Adults in a free society, participating in constitutional government, deserve a presumption of liberty. Economic policy may help limit what economists call “negative externalities,” or costs to the public resulting from individual behavior which do not infringe on constitutional rights, but policy must be carefully crafted to avoid unintended consequences like those seen in Massachusetts and San Francisco.

When politicians restrict products like ENDS, they take society multiple steps backward in the mission for better overall health. Entrepreneurial innovation of smoking-cessation products will contribute much more to public health than the blunt state instruments of taxation, onerous regulation and prohibition. 

About Nick Murray

Nick Murray, a resident of Poland, currently serves as Director of Policy with Maine Policy Institute, developing MPI's policy research, analysis, and strategic advocacy priorities. He is the author of numerous articles and publications such as the 50-State Emergency Powers Scorecard, Long-Term Growth vs. Short-Term Gimmicks: Maine's Economy and Gov. Mills' Second Biennial Budget, Sticker Shock: Maine's Burdensome Vehicle Inspection Mandate, and COVID Catastrophe: the Consequences of Societal Shutdowns.

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