Testimony: Utah Considers Nicotine Content Limit for E-Cigarettes

The intention to reduce vaping among youth that is behind Utah’s proposed rule amendment R384-415 is to be applauded. However, prohibiting e-cigarettes with a nicotine content that effectively competes with combustible cigarettes could prevent smokers from switching to safer alternatives, push some vapers back to cigarettes, encourage vapers to consume more e-liquid than they otherwise would and promote illicit nicotine purchases. 

Nicotine content and smoking cessation

Capping the nicotine content in e-cigarettes to below that of regular cigarettes increases the relative appeal of cigarettes. Nicotine limits and a wholesale tax of 56 percent severely limit the appeal of vapor products to Utah’s current smokers. There is an emerging body of evidence to suggest that e-cigarettes with a higher nicotine content relative to lower content e-cigarettes are more effective in transitioning smokers away from cigarettes and that limiting nicotine content could increase puffing intensity. 

Research funded by Cancer Research UK and published in the journal Addiction found that vapers using lower nicotine e-cigarettes used more e-liquid, puffed more deeply and more often than those who used a higher strength e-cigarette. Research specifically examining smokers using the Juul product published in Nicotine and Tobacco Research found those smokers who had access to the higher nicotine Juul product in North America were significantly more likely to switch to vaping than those in the United Kingdom who only had access to lower strength nicotine products. In addition, a new study from a range of authors examined how e-cigarettes with two different nicotine concentrations might affect smokers with no plans to quit. At 24 weeks, those participants using the higher nicotine e-cigarette were more than twice as likely to be smoking abstinent than those using the lower nicotine e-cigarette. 

The UK government, which limits nicotine in e-cigarettes to 20mg/ml as a result of the European Tobacco Products Directive, is actively considering revising up that limit. One of the reasons for this potential change is evidence showing e-cigarettes are more effective than nicotine replacement therapies (NRT) for helping smokers quit has strengthened significantly in recent years. For example, the most recent randomized controlled trial comparing e-cigarettes with NRT found smokers who used e-cigarettes were six times more likely to have stopped smoking than those using NRT.

Fiscal costs to limiting nicotine in e-cigarettes

The proposed rule claims costs to the state’s quitline and tobacco cessation services may be reduced if higher nicotine e-cigarettes are prohibited as there will be less nicotine dependence and therefore less need for these services. But the state’s Medicaid fund pays out $125,900,000 out for smoking-related diseases. If a small portion of vapers return to smoking, and a portion of current smokers who otherwise would have failed to switch to vaping, any savings to the state’s cessation services would be far outweighed by the long-term healthcare costs of continued smoking. Nicotine is not classified as a carcinogen and, while addictive, is not responsible for smoking-related diseases. It is the process of combustion and subsequent inhalation which makes cigarettes lethal, not the nicotine content. E-cigarettes contain no tobacco, there is no process of combustion, and have been shown to be significantly safer than combustible cigarettes. 

FDA review and scientific scrutiny

The FDA is reviewing e-cigarette product applications that contain reams of data on safety, efficacy, and potential threats to youth. If the FDA finds that any product is on net harmful to public health, it will be removed from the market. But if the product is deemed to be net beneficial, it will be authorized for sale as appropriate for the protection of public health. Banning products such as e-cigarettes with a nicotine content higher than 36mg/ml before the FDA concludes its review would limit consumer access to products the FDA may deem as a positive for public health later in the year.

Youth vaping and unintended consequences

The federal tobacco age was raised to 21 in 2019. Fortunately, youth vaping has fallen substantially in recent years. According to the 2020 National Youth Tobacco Survey (NYTS), youth vaping declined nationally by 30 percent in 2020. The survey was conducted before the closure of schools and the imposition of lockdowns in response to the coronavirus pandemic. Such declines show youth vaping can be reduced in the absence of hobbling the entire product category and limiting adult access to these products. In 2019 Utah’s youth vaping rate, defined as vaping at least once in the past 30-days, was already well below the national average at 9.7 percent and 32.7, percent respectively. 

Prohibitions of all kinds have unintended consequences. In 2018, San Francisco banned the sale of all flavored tobacco products, including e-cigarettes with flavors other than tobacco. Yale University’s Abigail Friedman found that after the ban was enacted, San Francisco area youth had double the odds of smoking compared to similar jurisdictions with no tobacco flavor ban. “While neither smoking cigarettes nor vaping nicotine are safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. Around 80 percent of Utah’s vaping market is made up of products that exceed the proposed limit of 36mg/ml. This demonstrates strong preferences among consumers for e-cigarettes that effectively compete with combustible cigarettes on nicotine content. A cap on nicotine in e-cigarettes could drive people back to smoking, push dual users to remain dual users, and or slow the process of smokers switching to vaping, which would be a significant hidden cost.

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