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Kentucky county throws out vape ban

Franklin County, Kentucky, struck a small blow against the USA’s rising tide of vaping bans last week when legislators dismissed an attempt to add vapour products to the county’s existing smoke-free policy.

Unsurprisingly, the ban was pushed by the county health department. Director Judy Mattingly asked the county attorney to draft a revised smoke-free policy based on her reading of the FDA’s Deeming Regulations, which classifies e-cigarettes as a tobacco product. According to Mattingly this means treating them exactly the same as combustible tobacco.

However, fortunately for Franklin County vapers, attorney Rick Sparks took a different view. Describing it as “a solution looking for a problem”, he pointed out that county authorities are overwhelmed by genuine drug problems. He also reminded Mattingly that she was asking for a criminal statute, where education would be a more appropriate response.

One unintended consequence pointed out by Sparks would be a major loss of revenue for the county jail. Prison cells are covered by the current smoke free legislation, but they can vape – and the jail made $86,000 last year selling them approved e-cigarettes.

PA vape shop sues state

Pennsylvania’s infamous vape tax is one of the most blatant attacks on e-cigarettes anywhere in the USA. By imposing a 40% floor tax on all stock held when the law came into force it’s already pushed more than 70 vape shops into closing their doors, and industry analysts believe that more than 90% of them will eventually go out of business. Now the law is being challenged by a family business who say its scope goes far beyond what’s sensible or proportionate.

In the uproar over the tax, many people have missed the insanely broad definition it uses. The state’s Department of Revenue argues that taxable products include batteries, chargers, resistance wire and even cotton – all items that have many non-vaping uses. State officials don’t seem to have considered the possible impact on a whole range of other businesses who sell these dual-use items. They’ve also taken a draconian approach to out of state sales – if you buy gear from anywhere except a licensed PA dealer it can land you a $5,000 fine or five years in jail.

Now Bob Oesterling, owner of the Smoke 4 Less vape shop in Clarion, PA, has filed a suit against the state. His argument is that both the FDA’s Tobacco Products Act and the state’s interpretation of it are unconstitutional, especially the way the tax is being applied to dual-use items – that’s against the Pennsylvania constitution’s uniformity clause, because it doesn’t treat businesses equally.

Oesterling is asking for a declaration that the tax will only be applied to specialised vaping products, and for tax collection efforts to be suspended until that happens. It’s not ideal – the law needs to be completely scrapped – but it’s certainly better than the status quo.

Think tank slams vape taxes

An influential US policy forum condemned excessive taxes on vapour products last week. The Manhattan Institute for Policy Research, a right of centre think tank, also pointed at falling tobacco tax revenues as a likely cause for the growing trend in the United States. The institute’s new report highlights Indiana, one of the states that’s most dependent on tobacco revenue – and also the home of the nation’s most egregious anti-vaping laws.

Author Jared Meyer argues that heavy taxes on vapour products are a misguided policy that will harm public health by pushing switchers back to smoking. However, he argues that for many states the long-term goal of reducing smoking is being ignored in favour of making up the short-term loss of revenue from tax on cigarettes. Putting the same or heavier taxes on vapour products will either replace the lost revenue or persuade users to go back to tobacco; either way, the state budget wins.

Indiana vapers are well aware that the new state licensing regulations were designed for one purpose only – to close out most of the industry from selling in the state. Meyer argues convincingly that the state’s reliance on MSA funds, which are now declining as smokers switch, is a likely motive for this.

The Manhattan Institute has influenced policy before, including New York’s zero tolerance policing strategy, and this new report might find a sympathetic audience from the incoming anti-regulation administration. That wouldn’t be good for state budgets, but it would be a huge improvement at keeping people alive.