More than 20 retailers attended the Falmouth Board of Health meeting Monday, October 7, to hear from regional and state officials about the effects of Governor Charles D. Baker Jr.’s four-month ban on the sale of vaping products statewide.
Acting chairman Stephen D. Rafferty said the committee would listen to the presenters and the resulting discussion, but would take no action during Monday’s meeting.
Robert Collett, director of the Barnstable County Regional Tobacco Control Program, and D.J. Wilson, tobacco control director and public health liaison for the Massachusetts Municipal Association, presented to the board on current tobacco control efforts occurring at the state, regional and local levels.
During the discussion that followed, Falmouth Health Agent Scott McGann said his department’s retail compliance checks had a 16 percent failure rate last year.
“Of 31 licensed establishments we had five checks last year, and we had 16 percent not pass; so, if nothing else, that needs to improve. If nothing changes in the regulations, I have to say that 16 percent is way too high, and quite frankly I think the fines might be too lenient,” he said.
Falmouth’s failure rate is the highest on Cape Cod, Mr. Collett added.
Mr. Rafferty urged the retailers present to reduce the 16 percent to zero.
In his presentation, Mr. Collett noted the many vaping-related illnesses and deaths across the country, adding that a person in Hampshire County died as the result of vaping earlier Monday.
The illnesses have included lung disease and grand mal seizures.
“It’s a serious and enormous health problem. We know that, with the work we’ve done over the past 25 years, we’ve reduced the smoking rate from 35 percent down to about 6 percent, and we’ve lost most of that traction and momentum [because of the rise in vaping],” he said. “Where cigarette use is now not something attractive or desirable to people, vaping obviously is.”
Michigan has instituted a similar moratorium, and closer to home, Barnstable, Chatham and Harwich have restricted the sale of all flavored vaping products to adult-only establishments, Mr. Collett said.
Seventy-three percent of students polled reported that they obtained their vaping products from brick-and-mortar stores as opposed to purchasing them online, Mr. Collett said. There are federal restrictions for online purchases but none at brick-and-mortar stores.
The Centers for Disease Control stated that about 10 percent of 11- and 12-year-olds nationwide have tried vaping, Mr. Collett said.
It takes about two weeks to become addicted to nicotine—the primary substance in a vaping pod—and the tobacco and vaping industries know that the average user will continue to use nicotine for 20 years before quitting, Mr. Collett said.
“It’s about a $60,000 price tag for an individual who uses a pod a day,” he said.
In addition to nicotine, both the design of the vaping products and the flavors of the aerosolized liquids also encourage young people to become addicted, and these liquids “can be doctored in any way,” Mr. Collett said.
“The governor made a reasonable and responsible decision to put a stop to the sale of these things,” he said. “At this point in time we are trying to determine what is causing the illnesses. As we all know, public health outcomes take several years to develop and manifest themselves, and these things have only been on the market for 12 years, so now we’re starting to see the results of long-term use of these products.”
While investigations continue into the cause of the illnesses and deaths, Gov. Baker also doubled the amount of nicotine replacement therapy one can get through the state’s help line and made it free to MassHealth recipients during the four-month ban, Mr. Wilson said.
“The governor also reserved the right to extend the moratorium after four months if he wasn’t satisfied with the results of the information that has been received at the executive level,” Mr. Collett said.
Mr. Wilson stressed that no vaping devices are federally regulated, so there is little hard distinction between “retail” and “black-market” vaping products.
“To use the liquor equivalent, there’s no Jack Daniels and ‘fake Jack Daniels’ out there,” he said.
“There is no regulatory oversight of the manufacturing process, so you have no idea where it’s being made, by whom or how the nicotine levels or the contaminants are being controlled,” Mr. Collett said.
Mr. Rafferty asked the officials to review the health board’s regulation to stop the delivery of nicotine-delivery products to individuals under 21 and to see if there are loopholes in the language that might be exploited.
Municipal and state authorities conduct compliance checks during retail visits once a year on average, Mr. Wilson said, but noted that people over 21 sometimes purchase multiple pods to sell to people under 21.
“This vaping crisis that’s happened over the past two years, the reason it’s been getting so much attention from cities and towns, and the police and principals, is because it’s not the usual ‘bad kid’ in the back row who’s vaping and doing all kinds of other bad things. It’s the quarterback who’s been kicked off the team because he’s been caught vaping,” Mr. Wilson said.
During the discussion period, Aku Patel, owner of 7-Eleven in Falmouth, said that substances other than nicotine might be responsible for the illnesses and that most retailers use sophisticated scanners to check buyers’ identification.
“If it’s a fake, it picks up. If it’s real, it goes through,” he said. “I would rather have the state go through what they’re doing right now—they are trying to figure out the real cause of this problem—and I would request the board to look at the whole issue and then make a decision on how we should move forward, together with us.”
Kevin Patel, another retailer, said that a 21-plus store would have the same problem with those over 21 selling to young people that all other retailers have.
It is against state law for someone to sell vaping products to anyone under 21, Mr. Wilson said.
Patrick Tinsley, an attorney with the Coalition for Responsible Retailing, said he is a trial counsel representing retailers in five vaping-related lawsuits in Massachusetts.
“One of the things that has really bothered me and my clients about the regulations that cities and towns [have passed] is that the economic burden of those regulations falls almost entirely on these small store owners, many of whom are struggling to make ends meet,” he said. “What you see on the flip side of that coin is that there is a tremendous financial windfall that these smoke shop owners walk into as a result of these regulations.”
Between 30 and 40 percent of most convenience stores’ annual income is associated with the sale of vaping products, Mr. Tinsley said.
“If you take 30 or 40 percent of the revenue from these stores and invite one [smoke shop] owner in a town to essentially capture all of that income at the expense of all of these store owners, you’re really creating a tremendously unfair and unjust economic situation, and I submit to the board that you aren’t improving the cause of public health whatsoever,” he said.