ALBANY – One of the fastest growing health concerns, one of New York’s most powerful lobbying forces and public trepidation are on a course to make the battle over vaping and e-cigarettes with nicotine among the most volatile issues of the 2020 legislative session.
Since Sept. 1, five bills with strong sponsors have been introduced in the State Legislature and are primed for action when legislators return to Albany in early January. They include proposals to ban vaping, prohibit vaping on public college campuses, restrict e-cigarettes sales to adults trying to quit smoking traditional cigarettes, and imposing high taxes on vaping products.
“It will be a big deal,” said Assemb. Linda Rosenthal (D-Manhattan), who has sponsored many bills to restrict vaping products with nicotine and cigarette smoking. “We need to have learned the lessons of tobacco years ago. They are implementing the same plan, it’s just adjusted for a slightly different product, but it’s the same addictive ingredient … it’s tobacco 2.0.”
The data that is motivating legislators include reports of 1,604 lung injuries associated with e-cigarettes or vaping from all states except Alaska as of this month. Among them are 34 deaths in 24 states, according to the federal Centers for Disease Control and Prevention.
This month, New York had its first vaping-related death -- a 17-year-old Bronx youth. The state said there have been more than 100 pulminary illnesses in New York related to vaping, with patients as young as 14 years old.
Gov. Andrew M. Cuomo is expected to target vaping in his annual State of the State address which opens the 2020 legislative session. He is expected to combine new and renewed vaping measures with a second try to legalize recreational use of marijuana.
“It is probably one of the most challenging (issues) I've had to address in New York, and it's a challenge for all the states,” Cuomo said of vaping. He met this month with governors from Connecticut, New Jersey, Massachusetts, Pennsylvania and Rhode Island on a cooperative effort to restrict vaping and legalizing marijuana. “We are working together to find regionally coordinated solutions to protect the public health."
Vaping product manufacturers and tobacco companies are already engaged. Their lobbying and campaign donations are expected to continue into the coming legislative election year.
“Right now, America is in the middle of a moral panic and good policy rarely flows out of moral panic,” said Gregory Conley, president of the American Vaping Association, a trade group. “Certainly New York is always at the top of the list in terms of anxiety.”
“We expect a lot of bad policy to be introduced in 2020,” Conley said in an interview.
Key senators and Assembly members know there is a difficult fight ahead.
Earlier this year, Rosenthal said she thought her bill to ban flavored e-cigarettes aimed at youth faced clear sailing after it passed the Assembly Health Committee. She did a head count for the next step, the powerful Rules Committee, which could then send the bill to the full Assembly for approval. But something happened.
“I had the votes, then lobbyists turned the vote of certain members to vote ‘no,’” she said.
So far this year, Juul Labs, a major e-cigarette and tobacco company, spent $262,645 lobbying in eight months, records show. Juul hired seven lobbying firms to try to influence legislation in Albany, New York City and in some counties, according to state records.
The Altria Group, which is one of the world’s biggest tobacco manufacturers and whose brands include Marlboro, purchased almost 35 percent of Juul Labs of San Francisco in December 2018 for nearly $13 billion. So far this legislative session, Altria spent $594,707 lobbying Albany and local governments, including Suffolk County, by hiring some of Albany’s most entrenched lobbying firms, including one headed by former U.S. Sen. Alfonse D’Amato.
In addition to trying to sway legislators and the governor in closed-door meetings, Altria’s effort included spending $158,239 in “drafting grass roots material” for consumers to lobby their representatives directly, state records show.
How much of Altria’s lobbying effort was devoted to vaping isn’t clear. Most of the lobbying was described in vague terms including “agribusiness-tobacco” and “miscellaneous business-general” and “health-cigarette.” Under those broad categories, more than 100 lobbying firms could contact legislators and the executive branch on vaping issues.
Vaping and tobacco firms are also contributing to political campaigns.
Altria contributed $12,500 this year to the Senate Democratic Campaign Committee. Juul, in its first campaign donation, gave $5,000 to the committee in October 2018, days before the Democrats won the Senate majority in the November elections, according to state records.
In all, since December 2018, Altria has contributed $27,000 to state campaigns.
In all of 2018, an election year when contributions generally ramp up, Altria contributed $15,000 to the Senate Democrats. That same year, Altria contributed $20,000 to the state Democratic Committee.
Most of the campaign donations went to the “housekeeping” accounts of Senate Democrats, Senate Republicans, Assembly Republicans and the state Conservative Party, according to state records. Under loose rules, campaigns have great latitude in how to spend housekeeping money.
Altria also gave to Republicans, including $37,600 to the Senate Republican campaign committee in the last two years - $28,600 of it in the 2018 election year while the GOP held the majority. Altria also donated $35,000 to the state Republican Committee in the 2018 election year.
An Altria lobbyist didn’t immediately respond to a request for comment.
After Rosenthal’s ban on flavored vaping products was stopped in the Legislature, Cuomo issued an executive order in September to ban flavored products that he said are aimed at youths. That order, however, is tied up in court. E-cigarette manufacturers secured a court order to halt the ban, which was to begin Oct. 18.
Conley of the American Vaping Association said the manufacturers support keeping vaping products from youths, but that opponents of vaping are using that concern and deaths related to marijuana vaping products purchased in the black market as ammunition to ban all vaping. He argues vaping provides a safer alternative to cigarette smoking and some smokers use vaping as a way to quick tobacco.
“You either have people who understand what the problem is and are playing politics with the situation, or those who know next to nothing about vaping in general and they just believe it is all bad,” Conley said.
To support his argument he cited some figures from the federal Centers for Disease Control and Prevention that showed an inconclusive cause of the illnesses and deaths, and noted that THC -- the part of marijuana that gives a high -- was involved in many of the cases. Most nicotine vaping products that are legally sold, however, don’t contain THC, unless they are sold in a state that has legalized marijuana or sold illegally on the streets.
“Since the specific causes or causes of lung injury are not yet known, the only way to assure that you are not at risk while the investigation continues is to consider refraining from use of all e-cigarette, or vaping, products,” the CDC stated.
The political heat will be turned up this election year by public opinion.
A recent Siena College Research Institute poll found 78 percent of voters believed vaping was a somewhat or very serious public health threat. The poll found 52 percent of voters supported banning all e-cigarettes and vaping products.
“Concerns over vaping have risen dramatically and now approach a level similar to opioids,” said Don Levy, director of the poll. “Vaping is not only in the news, but 73 percent say that we are facing a vaping epidemic among young people.”