In the wake of Trump’s sudden anti-vaping conversion earlier this week, the governor of New York, Andrew Cuomo, has decided to steal a bit of the spotlight for himself by issuing his own crackdown on vaping. On Sunday, Cuomo announced an “emergency executive action” to eliminate the sales of flavored vaping products aside from tobacco and menthol. With an executive order like this, governors are able to bypass the typical checks and balances which exist to prevent unilateral gubernatorial directives. The order is expected to hit New Yorkers in early October and can be extended to last a total of 90 days.
According to a statement by Governor Cuomo, “New York is confronting this crisis head-on and today we are taking another nation-leading step to combat a public health emergency. Manufacturers of fruit and candy-flavored e-cigarettes are intentionally and recklessly targeting young people, and today we’re taking action to put an end to it.”
During remarks to reporters, Cuomo also confused nicotine vaping and the black-market THC oil products linked with severe lung illness. To date, there is no scientific evidence linking commercial vaping products with any instance of acute respiratory illness or failure throughout the country.
Once Cuomo’s executive order takes effect, New York retailers will have two weeks to liquidate their existing supply of flavored vape juices and products.
Cuomo isn’t about to stop with a ban on flavored vaping products, however. Despite the fact that this ban could very well decimate an entire industry, Cuomo insists that lawmakers go further. His next plan of attack is to “prohibit advertising and marketing to young people”. The governor did not release any details regarding how he plans to achieve such a nebulous and historically challenging feat.
The governor also announced plans to “crackdown” on vendors who sell to underage people. He plans to forge a partnership between local police and the Department of Health in order to catch anybody selling to teenagers. This crackdown may, in the future, even include criminal penalties and stiff jail sentences for retailers who are duped by fake IDs.
Cuomo’s remarks on Sunday included several anti-vaping talking points as the governor recited disproven arguments. “Vaping is dangerous, period. No one can say long-term use of vaping – where you’re inhaling steam and chemicals deep into your lungs – is healthy.”
The next immediate step for the governor is an “emergency meeting” with Howard Zucker (New York’s Department of Health Commissioner) and the state’s Public Health and Health Planning Council. This council is typically tasked with issues like sanitary codes and operating regulations for hospice facilities, among several other things. In the eyes of several experts, this move seems a bit odd but is likely a ploy to circumnavigate traditional legislative channels.
This latest attempt to ban vaping is far from Governor Cuomo’s first assault on the industry. Recently, the governor attempted to ban vaping through a different executive action. Under pressure from a united front among local vapers, activists, and businesspeople, however, the governor’s office backed off, claiming that the action was undergoing a final legal review before it would be passed in its final form. This executive action was never revisited.
Cuomo has also attempted to ram a vaping ban through the state legislature. This ban, aimed at the same target as his current executive action, died in the New York Congress as it failed to garner the support it needed for a majority vote. Finally understanding that he does not have the popular, or even legislative, the support he needs for his deeply unpopular policy proposal, it seems the governor has found a solution.
On the other hand, vapers in New York are mobilizing rapidly. The New York State Vapor Association, which has successfully challenged Cuomo’s overtures in the past, is likely to be the primary force of resistance. Their recourse will likely involve a lawsuit supported by the city’s independent retailers and manufacturers, but their pleas are likely to fall upon deaf ears.
While the NYSVA is one thing, the national trade organization which supports them (the Vapor Technology Association) is already embroiled in battle along several fronts. They are currently challenging the ban in Michigan, San Francisco, and now New York. Additionally, they are pursuing a lawsuit against the FDA while losing the support of their most powerful and influential member: Juul Labs. Earlier this year, Juul Labs loudly distanced themselves from the VTA after their move to sue the FDA. The vape giant, funded by Big Tobacco, stated that it did not support the VTA’s decision to sue, instead offering its full support to the FDA and other anti-vape legislators nationwide.
On the ground, dozens of retailers are looking for a loophole in the proposed ban. Some vendors are looking into the legality of “nic shots”, for instance. Techniques like these have been employed successfully in other parts of the world, e.g. the UK, in order to circumvent England’s TPA, which restricts the size of e-liquid bottles and the juice capacity of vape devices themselves. For most local businesses in New York, the discovery of such loopholes is likely to determine whether they live or die.
Pressure on the vaping industry has mounted dramatically over the past several weeks. Governor Gretchen Whitmer of Michigan imposed a nearly identical ban just two weeks ago. Just like Cuomo, Whitmer lacked popular support for her plan and achieved her means via executive order. In fact, it is likely that the success of Whitmer’s ploy was the inspiration for Cuomo’s move.
With President Trump vocally proclaiming his support for vape bans nationwide, Cuomo surely felt that the time was right for him to strike. With the president himself elevating the issue to the national stage, the New York governor likely felt that he could gain some easy and positive coverage by appearing tough on vaping.
While these bans are set to destroy the entire industry and risk the lives of millions of Americans, the media continues to push the narrative that commercial nicotine vapes are responsible for the recent vaping deaths and illnesses. Very few mainstream media channels are accurately reporting the dangers of black-market THC vaping. As politicians and media outlets continue to misconstrue the issue, these bans are likely just the beginning.
