My Testimony Today Regarding the Massachusetts Emergency Ban on the Sale of Electronic Cigarettes

Testimony of Michael Siegel, MD, MPH

Professor, Boston University School of Public Health

November 22, 2019

The Department of Public Health justified its emergency order by arguing that removing vaping products from the market would protect the public – and especially youth – from the vaping-associated respiratory disease outbreak that has now affected more than 2,000 people and caused 47 deaths.

However, unbeknownst to many, this emergency order was not successful in removing all vaping products from the market. In fact, the Department’s emergency order exempted – and therefore failed to remove from the market - a large number of flavored e-liquid products that are highly popular among youth and which Massachusetts youth continue to use, despite the emergency order. These flavored e-liquids are used by 63% of youth who vape regularly. Unfortunately, all of the following flavors are exempt from the ban and remain on the market today throughout the Commonwealth, easily accessible to youth.

The exempted flavors include all of the following:

•      "Mario Carts Vanilla Glue,"
•      "Heavy Hitters Vape Strawberry,"
•      "Honey,"
•      "Gelato,"
•      "Blueberry,"
•      "Banana Sherbet,"
•      "Jillybean,"
•      "Super Lemon Haze,"
•      "Romulan Grapefruit,"
•      "Sour Tangie,"
•      "Biscotti,"
•      "Pineapple Express,"
•      "Mango,"
•      "Juicy Melon,"
•      "Strawnana,"
•      "Granddaddy Purp,"
•      "Forbidden Fruit,"
•       "Lemon Lime,"
•       "Golden Goat,"
•         "Butter,"
•         "Orange Cream,"
•         "Banana Cream,"
•         "Strawberry Banana,"
•         "Grapevine,"
•         "Lime Sorbet,"
•         "Potent Pineapple,"
•         "Pure Pear,"
•         "Red Apple,"
•         "Blue Raz,"
•         "Strawberry Sherbet,"
•         "Grape Soda,"
•         "Pink Sherbet,"
•         "Cactus Cooler,"
•         "Sunset Sherbet Sauce,"
•         "Sunset Gelato,"
•         "It's Yo Birthday,"
•         "Wedding Cookies,"
•         "Orange Cookies,"
•         "Girl Scout Cookies,"
•         "Grape Pie,"
•         "Cookies n Cream,"
•          "Apple Jacks,"
•          "Banana OG,"
•          "Birthday Cake,"
•          "Black Berry Kush,"
•          "Blue Dream,"
•          "Blueberry Kush,"
•          "Bubble Gum,"
•          "Candy Land,"
•          "Cherry Pie,"
•          "Cotton Candy,"
•          "Fruity Pebbles,"
•          "Gelato,"
•          "Grape Ape,"
•          "Honey Berry,"
•          "Honey Dew,"
•          "Ice Blue Raspberry,"
•          "Key Lime Pie,"
•          "Lemon Berry,"
•          "Lemon Head,"
•          "Lemon Slushie,"
•          "LSD,"
•          "Mai Tai,"
•          "Mango Kush,"
•          "Maui Wowie,"
•          "Mimosa,"
•          "Mojito,"
•          "Orange Chai,"
•          "Orange Cookies,"
•          "Orange Daiquiri,"
•          "Peach,"
•          "Pineapple Express,"
•          "Pot of Gold,"
•          "Purple Punch,"
•          "Rose Gold,"
•          "Russian Cream,"
•          "Sour Apple,"
•          "Strawberry Shortcake,"
•          "Sweet Aromatic,"
•          "Tangie,"
•          "Vanilla Kush,"
•          "Water Melon,"
•          "Wedding Cake," and
•          "Zskittlez."

All of these flavors remain on the market, despite what policy makers are telling the public. The truth is that while the sale e-liquids that contain nicotine has been banned, all of the above flavors, which are available in THC vape cartridges, remain on the market.

And in fact, it is these products, not the nicotine e-liquids sold in retail stores, that are responsible for the respiratory disease outbreak. Recently, the CDC found that the lungs of every single one of the 29 patients whose lung fluids were tested contained vitamin E acetate. This is a thickening agent that is used only in THC vape carts and possibly in black market, counterfeit or adulterated nicotine cartridges, but not in legal nicotine-containing e-liquids sold at stores.

You can now easily see why the ban on the sale of nicotine e-liquids at retail stores is no longer justified. There is simply no evidence that these products are causing the outbreak, and there is incontrovertible evidence that vitamin E acetate oil – or some chemical contained in that oil – is now implicated as the culprit. Therefore, the only rational action for the Department to take at this point is to discontinue the emergency ban on nicotine-containing vaping products sold at retail stores in the Commonwealth.

Not only is this ban not preventing any outbreak cases – because those cases are not being caused by the banned products – but the ban is likely making the outbreak worse. Why? Because youth who can no longer access nicotine e-liquids are simply switching over to many of the sweet, fruity, alcohol-based, and other attractive flavors that are readily available in THC vape products.

The tragedy, of course, is that these flavored THC e-liquids are precisely the ones that are killing many people and causing life-threatening illness. Banning nicotine e-liquids is not preventing youth from dying due to respiratory failure. But it may actually increase the number of kids who develop respiratory failure.

With flavors like Girl Scout Cookies, Cookies and Cream, Mimosa, Banana Sherbet, It's Yo Birthday, Russian Cream, Gelato, Grape Soda, Potent Pineapple, and Super Lemon Haze available, do you really think that youth are just going to completely stop vaping?

In the short time that JUUL has limited access to many of its flavors (such as mango and creme), youth have just shifted over to vaping the mint-flavored JUUL pods. They didn't stop vaping because some flavors were taken off the market. Youth are resourceful, vaping is cool, and they will simply switch to whatever flavors are available.

Those flavors will be vape juices like Zskittlez, Bubble Gum, Cotton Candy, and Cherry Pie.

And the only difference will be that instead of the risk of mild respiratory irritation (with most nicotine-containing e-liquids) or nicotine addiction (with JUUL), the major risk for our nation's youth will now be DEATH from lipoid pneumonia or chemical pneumonitis. How is that good public health policy?

Moreover, the ban on electronic cigarettes is already having devastating impacts on the public’s health.

Sales data reported by PiperJaffray for the four weeks ending October 20 (when the Massachusetts emergency ban was in effect for 25 of the 28 days) and the four previous weeks (mostly before the ban went into effect) were compared to sales data for the previous year. The PiperJaffray analysis revealed that there has been a substantial shift from vaping to smoking in the state. This indicates that ex-smokers in Massachusetts who were reliant on e-cigarettes to stay smoke-free are now returning to smoking in large numbers.

Nationally, there was very little difference in the rate of decline in cigarette sales between these two time periods from 2018 to 2019. The rate of decline decelerated by just 0.3 percentage points (from -7.8% to -7.5%). However, in Massachusetts, the rate of decline decelerated by a massive 5.7 percentage points (from -9.8% to -4.1%).

The emergency ban on e-cigarettes did not prevent any respiratory disease cases, but it did send tobacco stocks soaring. Because the stock analysts understood that this ban would result in a substantial return to smoking among vapers.

In fact, recent survey data of Massachusetts e-cigarette users revealed that a substantial proportion of them reported returning to smoking after the emergency order went into effect.

As you may know, I did not believe that the emergency order was justified when it was issued on September 24^th because it was clear to me that the outbreak was being caused primarily, if not solely, by THC vaping products. However, even if it was justified on September 24^th, it is not justified on November 22^nd, after overwhelming evidence has been uncovered that unequivocally ties the outbreak to cannabis vaping cartridges or other black market products that have been adulterated with vitamin E acetate oil.

I therefore recommend that the Department rescind the emergency order as it relates to nicotine e-cigarettes sold at retail stores in the Commonwealth.