Bills in Both Houses Would Tighten Restrictions on Vaping, E-Cigs

Lilo H. Stainton | November 14, 2019 | Health Care
Proposals would outlaw all flavored tobacco and e-cigarettes, including menthol, implement other recommendations of governor’s vaping task force
Credit: Creative Commons
The measures would tighten regulations on flavored tobacco and e-cigarettes.

New Jersey lawmakers are scheduled today to consider proposals that would eliminate all flavored tobacco and e-cigarette products — including menthol cigarettes — increase taxes on vapes, create an electronic tracking system for their sales and tighten regulations for retail outlets to reduce sales to those under age 21.

Bills scheduled to be heard in the Assembly and Senate health panels would codify some of the key recommendations of the Electronic Smoking Device Task Force Gov. Phil Murphy empaneled earlier this year to address concerns about vape use, which has soared in recent years among young people. At least one in five Garden State high schoolers now uses e-cigs although state law prohibits sales of any tobacco product to minors.

Lawmakers first tried to ban e-cigarette flavors in 2016 but the issue has recently received new attention as health officials across the country face a growing number of vape-related lung injury cases. More than 2,000 cases are under review and 39 people have died nationwide, including one in New Jersey; initial research suggests street-altered products may be largely to blame.

“Young people are using flavor as a gateway to nicotine addiction,” said Sen. Joseph Vitale (D-Middlesex), chair of the health committee and a sponsor of several bills. “There’s going to be pushback” from the vaping industry, he said, “but we’ll get this done.”

More nicotine than typical cigarettes

While e-cigarettes — which heat a liquid infused with nicotine or marijuana into a vapor that is inhaled — do not contain the same cancer-causing tar as traditional cigarettes, they do contain higher levels of nicotine. Health experts also note little is known about the effect of some of the flavors and other substances, but some users swear the products have saved their lives by allowing them to stop smoking cigarettes.

A total of seven bills are on the agenda for Thursday, but several are nearly identical versions of the same proposals. Vitale and Assemblyman Herb Conaway (D-Burlington), who chairs the health committee in his chamber, are the lead sponsors on a number of measures, including the flavor ban. Senate President Steve Sweeney (D-Gloucester) is sponsoring a tax that would require vape products be carefully tracked. Vitale said most are likely to head to the budget committees next, where amendments will be made to resolve any disparities between the versions.

The bills scheduled for consideration Thursday include:

S-3265/A-3178 – bans flavored vape products

The bill would make it illegal to sell, give away or otherwise distribute vape products that contain flavoring of any kind. It would impose fines ranging from $250 for the first offense to $1,000 for the third or later violation. It is up for a vote in both health committees today. This proposal dates to January 2016 and cleared hearings in both houses in the previous legislative session but has yet to gain traction — until now. Vitale, Sen. Shirley Turner (D-Mercer) and Sen. Richard Codey (D-Essex) are lead sponsors of the current Senate version. Conaway and Assemblywomen Carol Murphy (D-Camden) and Valerie Vainieri Huttle (D-Bergen) have championed the measure in their house.

A-5922/S-4224 – revises sales requirements for tobacco, vape products; increases penalties

This bill seeks to tighten and clarify state laws regulating tobacco product sales in order to reduce minors’ access to vapes; it also spells out that these limits don’t apply to medical cannabis. It would further require the use of an electronic system to monitor the sale of e-cigarette products, pending under another bill, which would allow regulators to track vape products through a system similar to how the state taxes and controls cigarettes.

In addition, the proposal calls for vendors to keep all tobacco products, including vapes, in a locked cabinet behind the counter or other restricted area. It would also require salespeople to confirm the age of the buyer before selling any tobacco items.

Retailers could face penalties ranging from $500 to $2,000 — double the current rate — for violations; the clerk making an underage sale could be charged with a disorderly persons offense and fined $1,000, also twice the current amount. And minors who buy vapes could face similar charges, with a fine of up to $500 and as much as 30 days in jail, or both, as they now do for buying tobacco products under the legal age.

The proposal would also create new regulations to restrict what vape products can be sold legally, including banning devices that look like unrelated items — like flash drives or phones. In addition, it would require all products sold to be registered with the federal Food and Drug Administration and to include an electronic-tracking feature; vape liquids couldn’t contain more than 2% nicotine or be tampered with outside the factory.

Conaway is the sponsor of the Assembly version, which appears to align with draft text of the bill Vitale will formally introduce tomorrow. Both committees are scheduled to vote on the measure.

A-5923/S-4223 — revises licensing and expands taxes on vape sales

This bill would change how vape sellers are licensed under the state Treasury Department, raise and expand the sales taxes charged on these products, and establish a new electronic-tracking system for e-cigarettes like the so-called tax stamp used protect the legitimacy of conventional cigarette sales.

It also creates new categories of business to separate shops largely devoted to e-cigarette products from other retail sites that offer a limited selection of these products; all of these retailers would need a license under the new bill. Currently, only vape shops that sell liquid refills require a special e-cigarette license, the bill notes.

The proposal raises the fee for vape-shop licenses from $50 annually to at least $500; more extensive businesses would need to pay $1,000 a year. It would also permit municipalities to require additional fees, if the revenue generated is spent on enforcement. Businesses that sell vape products to underage buyers would face a $2,000 fine and could lose their license; operating without a license could result in daily penalties of $1,000.

In addition, the measure would impose a new 20% retail tax rate on vapes and liquids and doubles the existing 10-cents-per-milliliter tax on refills. (New Jersey charges an excise tax of $2.70 per pack of cigarettes, in addition to the 6.6% sales tax.)

The bill also requires the Treasury’s Division of Taxation to establish a database and an electronic system — with a stamp or barcode of some kind — that allows it to track all vape-related products sold. When he first discussed his plan, Sweeney said he envisioned something akin to the tax stamps the state currently uses to regulate cigarette sales and ensure they are distributed legally.

Two months after this process was developed, manufacturers would need to start building this tracking device into their products, upload information on these items to the state system, and report any problems to regulators, the bill notes. Items without the stamp would be considered contraband, like cigarettes without the state tax stamp.

The measure is sponsored by Conaway; it appears almost identical to a plan Sweeney will introduce Thursday.

S-1947 — prohibits menthol cigarette sales

The bill, sponsored by Vitale and Sen. Robert Singer (R-Monmouth) amends a 2008 statute that banned flavored cigarettes to include menthol and clove products, both of which were exempted at the time.

The legislation notes that research has shown the cooling aspect of the menthol flavor desensitizes smokers so that they light up more frequently than their peers who prefer unflavored tobacco, which puts them at greater risk for addiction and smoking-related diseases. Menthol products have historically been marketed to the black community, the bill adds, and nearly nine-in-10 African American smokers prefer menthols.

Conaway first introduced this measure in the Assembly in January 2018, when it also passed the health committee he chairs and was referred to the Assembly’s appropriations panel, where the measure remains. (The Assembly version is not up for a hearing Thursday.)

Federal regulators, who banned other flavored smokes in 2009, have also explored further restrictions on menthol products but have not imposed any ban, lawmakers note.