On December 15, the Multnomah County Board of Commissioners will vote on an ordinance that will ban the sale of flavored tobacco and nicotine products in the county (which includes Portland, Oregon). I testified in person against the ban, which you can view here. But since testimony was limited to just two minutes, I’ve also submitted the following written response below. If you would also like to submit a response, use this link. My comments:

I have previously testified in opposition to the proposed ban on flavored tobacco and nicotine products in Multnomah County. While I oppose the ban in its entirety, I’d like to suggest two modest reforms that the Board should consider if it is serious about having a positive impact on public health. I’ll conclude with a few other notes.

1. The ordinance as currently written will ban flavored nicotine products even if they are authorized by the Food and Drug Administration. The 2009 Family Smoking Prevention and Tobacco Control Act created the FDA’s Center for Tobacco Products to determine which tobacco and nicotine products should be authorized for sale in the United States. The Center has an annual budget of more than $700 million and nearly 1,000 employees working on tobacco regulation. In contrast, the Multnomah County Board of Commissioners consists of five people with no specialist training in tobacco regulation and myriad other issues to consider.

It’s obvious that the FDA is in a better position to evaluate the health impact of various nicotine products than the Multnomah County Board of Commissioners. Novel products such as e-cigarettes must meet an extremely high bar to be authorized by the FDA, persuading regulators that allowing their sale will be “appropriate for the protection of public health” by weighing population-level impacts on both existing smokers and people who do not currently smoke or consume nicotine. To date, the FDA has not authorized any vapor products for sale in flavors other than tobacco, so exempting products that receive FDA authorization would not have an immediate impact on what vapor products are allowed in Multnomah County.

The Board should not substitute its judgment for that of the FDA. The ordinance should be amended so that if flavored vapor products are eventually authorized by the FDA, they will be exempted by the ban in Multnomah County.

2. The ordinance as currently written will ban flavored oral tobacco and nicotine pouches (the latter of which do not contain tobacco). The science is clear that these products are far safer than smoking and they have demonstrated great potential to reduce the harms of tobacco use. See, for example, Sweden, which has achieved the best tobacco-related health outcomes and lowest smoking rates among men in Europe thanks in large part to snus. 

The most recent data from the National Youth Tobacco Survey find that barely over 1% of youth report using oral tobacco. The FDA has authorized several oral tobacco products for sale noting their low appeal to youth and their much lower risk profile than cigarettes. Indeed, oral tobacco products from Swedish Match, including flavored varieties, are among the first products ever authorized by the FDA with modified risk orders permitting them to be labeled with truthful claims that they present much lower risks than smoking cigarettes. Specifically, the FDA determined that authorizing their sale “will significantly reduce harm and the risk of tobacco-related disease to individual tobacco users and benefit the health of the population as a whole.” Has the Board completed its own review of these products to conclude that the FDA is mistaken and should be overruled? It is doubtful that it would have any basis to do so.

Flavored oral tobacco and nicotine products are not popular with youth but can help adult smokers switch to safer alternatives than smoking. Indeed, I personally know someone here who has successfully stayed smokefree for more than a year thanks to flavored nicotine pouches. What will happen to adults such as him if these products are banned? Unfortunately, one likely outcome is that many will revert back to smoking. This would obviously be a bad outcome but it could be easily averted by exempting flavored oral products from the ban.

If the aim of the Board is to actually protect public health rather than to paternalistically forbid adults from consuming flavored nicotine products, regardless of their potential to save smokers’ lives, then both of these small reforms should be no-brainers. There is no justification for banning flavored products authorized by the FDA and oral products that are not popular with youth. Is anyone on the Board taking these matters seriously enough to consider these amendments? 

As I mentioned in my testimony at the recent public hearing, the evidence presented to the Board has been extremely one-sided in favor of prohibition, with arguments against the ban coming mostly from business owners. The Board has overlooked a massive scientific literature on the benefits of tobacco harm reduction. Opinion among experts is much more divided than the activists and health advisors speaking to the Board have indicated, so I’d like to recommend a few other sources that are worth your time.

First, public health officer Dr. Jennifer Vines testified that smokers should simply try FDA-regulated cessation products rather than switching to vaping. However, these products have a very high rate of failure and there is mounting evidence that e-cigarettes have a higher rate of success helping smokers quit and that smokers are more likely to try them in the first place. Making it illegal for adult smokers to access the vast majority of e-cigarettes, leaving them with only ineffective patches and gums, has a very “let them eat cake” quality to it. As a counterpoint, see this recent Cochrane Review drawing on 78 studies to conclude that there is high-certainty evidence that e-cigarettes are more effective than nicotine replacement therapies.

I also highly recommend reading this paper coauthored by fifteen past presidents of the Society for Research on Nicotine and Tobacco. These are some of the most esteemed figures in the field of tobacco science and they warn that policies such as the one proposed in Multnomah County fail to consider the potential benefits to adult smokers. “We believe the potential lifesaving benefits of e-cigarettes for adult smokers deserve attention equal to the risks to youths,” they write. The exclusive focus on youth vaping overlooks both the near- and long-term benefits of displacing the most dangerous tobacco products with safer alternatives. This perspective was completely lacking in testimony to the Board.

Lastly, I’ll bring a recent piece of my own to your attention. I am disappointed that the Board voted against an amendment to exempt hookah lounges from the ban. Only 1.1% of youth report using hookah and there are only three lounges remaining in Portland, so their impact on public health is negligible. Yet the impact on the owners and employees of these businesses is potentially devastating. One of these is Raed Dear, a deaf immigrant from Jordan whom I wrote about for Reason. Will you feel good about yourselves when you drive him out of business? You should not.

On its page about harm reduction, the Oregon Health Authority states:

Harm reduction is a set of practical strategies and ideas aimed at reducing negative consequences associated with substance use. Harm reduction meets people where they are and supports their agency in preventing overdose and adopting safer practices, on their own terms and with the respect and dignity they deserve.

This philosophy of harm reduction should not be limited to opioids. What would it mean to meet people who smoke where they are, support their agency, and treat them with the respect and dignity that they deserve? It would mean recognizing that many of them are addicted to smoking and that pharmaceutical options like patches and gums are insufficient to help many of them. It would mean not making it illegal for them to access safer products that are far less likely to kill them and that have a proven record of helping people stay off cigarettes. It would mean acknowledging that their choices are ultimately theirs to make, and that many of them will turn to illicit, unregulated sources if they cannot obtain them from legal retailers. In short, it would mean offering them something better than “quit or die,” which is essentially what the Board is saying to them with this poorly thought out ban.

It is madness to regulate products solely by their flavor and with zero regard for their capacity for harm. This ordinance will ban many of the safest sources of nicotine, leave deadly cigarettes on the market, trample on the rights of consenting adults, pointlessly destroy minority-owned businesses, and perpetuate the harms of smoking. Voting in favor of it will be a shameful and embarrassing mistake for a county that portrays itself as liberal and progressive.