What a year for bipartisanship.

New York Gov. Andrew Cuomo, a Democrat, announced that he and his administration are taking emergency action to ban flavored e-cigarette products.

In a similar move that emulates Michigan Gov. Gretchen Whitmer, also a Democrat, and her use of executive action to ban flavor, Cuomo’s latest move against vaping is apart of a demonstrable trend that hundreds of local governments have endorsed.

New York and Michigan are the first two states in the union to ban the sale of flavored e-cigarette products. Other states are taking notice.

New Jersey Gov. Phil Murphy, a Democrat, announced that he has ordered the creation of a task force “to formulate a comprehensive strategy to protect New Jersey residents from the hazards of electronic cigarettes.” Murphy issued this order on September 12, giving the task force 21 days to respond.

Plus, we cannot forget the national flavor ban that the Trump administration announced late last week.

U.S. Sen. Mitt Romney, a Republican of Utah, is also teaming up with Sen. Dick Durbin, a Democrat of Illinois, to bring forth prohibition legislation lifting the national minimum legal sales age for nicotine and tobacco products to 21 years. Sens. Brian Schatz, a Democrat of Hawaii, and Todd Young, a Republican of Indiana, also sponsor the “Tobacco to 21 Act” with a bipartisan pallet in the House of Representatives pushing a companion bill brought by Reps. Diane DeGette, a Democrat of Colorado, and Chris Stewart, a Republican of Utah.

A fucked history

From sea to shining sea, flavored vaping is becoming public enemy number one. We are experiencing a repeat of history as governments all over the United States prepare prohibition policies against nicotine vaping.

Richard Nixon, the 37th President of the United States and a prominent conservative Republican for his time, popularized the concept of a “war on drugs.” After presenting recreational use of then illicit substances like marijuana as a two-pronged epidemic of increasing public health concerns and crime.

Since, each administration has advanced the war on drugs in some capacity. Gerald Ford, a Republican, and Jimmy Carter, a Democrat, the two immediate presidents leading post-Nixon and post-Watergate corrupted America, took some noticeable steps to adopt a federal drug enforcement policy that was based on evidence-based outcomes. However, Ford and Carter fell to anti-drug progressives and conservatives, religious groups, and parent advocacy organizations when both administrations attempted to reform the federal cannabis policy in some way or another.

We move forward a few decades, Ronald Reagan and his wife Nancy furthered Republican-led efforts against illicit drug use.

Into the 1990s, Bill Clinton, a Democrat, also did very little. In fact, the president signed and championed the controversial Violent Crime Control and Law Enforcement Act of 1994. Referred to as the “1994 Crime Law,” Clinton supported this provision to advance mass incarceration and “tough-on-crime” policing policies that additionally penalized small-time drug offenders. The 1994 Crime Law also propagated more disproportionate policing among communities of color, at-risk populations, youth, and functional drug users.

(Former Vice President Joe Biden, the Democrat frontrunner in the party’s 2020 primary race, was instrumental in the drafting of the 1994 Crime Law and advocating for its passage when he served as a U.S. senator from Delaware.)

In the 2000s, George W. Bush, a Republican succeeding Clinton, compounded the “war on drugs” with his “holy crusade” through his illegal wars in Afghanistan and Iraq.

Barack Obama is the only modern (2000 on) president to proclaim that, “Drug addiction is a health problem, not a criminal problem.” He certainly made important changes, but was still unable to make any significant impacts on most federal drug policies. Obama did, however, grant clemency and cut the prison sentences for scores of small-time drug offenders who were victims of aggressive law enforcement actions.

Then we have Donald Trump. Trump achieved power with the help of a “tough on immigration” platform that encompassed crime control, illicit drug trafficking, unconstitutional detentions of innocent migrants, and all-around paternalistic justice policies. The national flavor ban that the Trump administration is pushing for is a wink to the legacy of the decades-long war on drugs. Like Nixon, like Trump—just worse.

Propaganda games

Propaganda is a driving force for drug-war panics. For the immediate case, policies like flavor bans correspond with stigmas and fears built on the premise of social guidance.

“Moral panic,” or the theory that analyzes societal outrage when “a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests.” A theory that I have written extensively on including in my academic upbringing, moral panic is often used to describe a scenario or scenarios that result in governmental responses to so-called morally egregious practices and certain personal behaviors.

As with any drug-war panic, the moral panic derives from the systematic deployment of public narratives that draw focus to a target subject in a negative light. Reefer Madness, the 1936 propaganda film against cannabis-use turned cult classic and pop-culture punch line, is an excellent example of propaganda driving government policy and public reaction.

This film is an example of the social guidance genre of educational films used to shape how children and adults behave. Social guidance, in this context, is the use of moralistic teachings to achieve a narrative of thought among the country’s rising and omnipresent populations.

Films like Reefer Madness were also excellent “exploitation films” that utilize contentious social topics and weaponize them for one or multiple messages that support or oppose a particular issue. For example, modern-day logical fallacies used in political rhetoric derive from many of the messages communicated in these films.

Sex Madness, a 1938 film and one of my favorite exploitation films to laugh at, is a non-drug related example of how the social guidance genre exploits the fears of misinformed individuals. The premise of this film, as you could guess, stokes the fear that premarital sex, sexual activities with members of the same gender or sex, and wild “sex” parties cause manic episodes and psychosis.

Like the premise of many exploitation films, drug war propagandists have been able to trick people into thinking that certain activities can cause health issues despite evidence suggesting otherwise.

Cary Bennett of the University of New England, in Australia, wrote in 2018 for the Journal of Sociology wrote that the use of moral panic in the context of drug use is could compound crises and how media, government, and the general public handle them.

“The contention is that rather than investigating a particular drug panic as a thing in itself, to be examined and evaluated in terms of its internal structures, features or processes, we need to shift our attention to how the panic depends upon, signifies and condenses wider social and historical anxieties around drugs and other social problems, at times reinforcing, challenging, extending or limiting these wider discursive concern,” Bennett wrote.

“Techniques used in moral panic analysis can help identify how the problem is defined or constructed as a problem, but we also need to reveal and describe the strategic relations between and within the discursive and non-discursive elements to develop a more nuanced and sophisticated understanding of the operations of power/knowledge in producing and responding to the problem,” she continued.

If we consider the latest push for vaping bans, government leaders and policymakers have all cited a plethora of recent crises that involve vaping as a behavior. For example, Trump’s call to ban flavored e-cigarette products to “protect the children” builds on the moral panic of the teen vaping epidemic declared by former Food and Drug Administration chief Scott Gottlieb and Surgeon General Jerome Adams. The “mysterious” lung disease outbreak linked to vaping illicit and contaminated cannabis products and some cases of contaminated nicotine and dual nicotine and THC use has also been used to justify a ban on nicotine flavors. While this analysis does not diminish to the importance of addressing these issues, the use of moral panic mechanics through some form of agenda propagation or another

Essentially, Trump and Govs. Cuomo and Whitmer (among others) have blamed both crises and a slew of “potential” or “yet to be seen” cases. Moral panic, therefore, derives from this conflation of concerns. Rather, regulators should have kept these cases separate to offer a measured and balanced response to legitimate concerns about safety, toxicity, and potentially illicit trade.

Endgames

Moral panics, in turn, pave the way for “endgame” drug control policies. The war on drugs also has a history of pushing ultimatums to achieve policy goals.

Cuomo ordered his flavor ban through executive action if you recall from before this piece. As I stated, Cuomo’s ban in New York uses the same logic and rhetoric as Whitmer. Both bans were issued and will be implemented under the guise of public health emergency rulemaking.

These policies typically regulate how state and local governments respond to the outbreak of communicable diseases. One of the key criticisms about these emergency policies being cited to ban flavored e-cigarette products is that both the “teen vaping epidemic” and the “vape-lung outbreak” are results of overblown hype.

Public health authorities often use stigmatizing messages to impact public perception of certain risky personal behaviors. Often, these messaging campaigns disproportionately scrutinize and shame obese individuals all the way to functional heroin users. These messaging campaigns could also drive government-supported lifestyle discrimination that alienates the targeted class and their collective civil liberties.

In this context, tobacco control has adopted “endgames” interventions that emulate the crime-control focused drug policies of the past. American alcohol prohibition in the 1920s and 1930s is the most prominent example of “endgame” interventions, revealing that collective good policymaking like temperance laws fall victim to the societal structures of the law of unintended consequences.

A flavored e-cigarette ban, at any scale, is an endgame policy. Evidence suggests that non-tobacco flavors support smokers make the switch to e-cigarettes and begin their journey through the harm minimization spectrum. This is a fact that is supported by governments all over the world, including Public Health England.

Plus, these bans discriminate against people who rely on vaping, the small and medium-sized businesses that struggle to compete in an already cartelized market, and the personal autonomy of individuals seeking harm-minimized products.

Peter Reuter, at the time a senior economist for the RAND Corporation, wrote in the academic journal Tobacco Control that tobacco control endgame interventions will result directly in a spike of illicit market activity.

“The endgame proposals differ in important ways from the prohibition of the psychoactive drugs,” he wrote. “The control policies to deal with these markets may be sensible and fair; they may turn out to be oppressive and corrupt.”

He added, in his chief findings: “Black markets have the potential to create harms, such as violence, corruption, and illegal incomes, in addition to increasing tobacco use and related health effects.”

Prohibition will force products to suffer in quality, too. When quality suffers, people will fall victim to more contaminated products and more people will die.

To conclude, consider the words of Tony Newman from 2014, at the time the director of media relations for the nonprofit Drug Policy Alliance.

“It took the U.S. 20 years to get behind syringe exchange programs, even though much of the rest of the world had embraced it and the evidence was crystal clear that syringes reduced HIV while not increasing drug use,” he wrote. “Because of this slow learning curve, 100’000’s of people needlessly got HIV and died.”

This slow learning curve, Newman goes on to write, applies to e-cigarettes.

“This is our moment to organize and fight for e-cigs and vaping as a life-saving harm-reduction practice. A slow learning curve is not something we can accept.”

Trump, Cuomo, Whitmer, and others should take note.


Note from the author: A reader, the renowned Bill Godshall of Smokefree Pennsylvania, wrote a profound observation in response to my article’s main premise that blames the Trump administration for prohibition.

Godshall wrote to me:

While I strongly agree with your War on Drugs analogy, your article unfairly blames Trump and his administration for the vapor product sales bans, onerous regulations and anti-vaping propaganda that was imposed by Obama’s FDA (beginning in 2009) and by many Obama appointed ‘deep staters’ at FDA, CDC, NIH, US SG, and other DHHS agencies (that were handpicked by former CTFK president Bill Corr in 2009 after Obama appointed Corr to be Undersecretary of HHS).
Obama’s FDA hired former GSK lobbyist Mitch Zeller in 2013 to ban the sale of >99.9% of nicotine vapor products and create/award Big Tobacco with a monopoly/cartel for e-cigarettes (aka FDA’s Deeming Rule), and gave $1+ Billion to hundreds of researchers at dozens of universities to demonize vaping.
Had it not been for Trump and Gottlieb, virtually all nicotine vapor products would have been banned more than a year ago (on August 8, 2018).
 
And had CDC’s Brian King (also hired by Corr/Obama) or Mitch Zeller truthfully informed Scott Gottlieb that much/most of the increase in teen vaping from 2017 to 2018 was due to increased THC vaping by teens, Gottlieb wouldn’t have claimed there’s a teen nicotine vaping epidemic, and wouldn’t have proposed the flavored e-cig sales ban (which isn’t likely to go into effect until after the Deeming Rule bans virtually all nicotine vapor product sales on May 12, 2020).
Godshall makes an excellent point. I have written many pieces citing Obama-era rulemaking as backlash origination. While I fundamentally agree with much of what Godshall says to blame Obama, we also need to keep in mind that Trump is still complicit. Donald Trump’s administration advanced the trade war against lithium-ion battery cells for vapes and components from predominately Chinese manufacturers. Trump officials, including the president himself, have built on drug war-era tactics. This is especially the case for Trump’s so-called “Drug-Free America” mantra. Though he said this during an address about the country’s opioid crisis, I and many other commentators have found cause to argue that his lines of rhetoric here can easily correspond to other issues related to drug use and substances of any kind. In the context of a “drug-free” country, this type of rhetoric drives prohibitive responses. Trump and Obama, as far as I am concerned, are equally guilty. Obama endorsed and signed into law the Tobacco Control Act of 2009. His FDA began the process to scare people away from a safer alternative. Obama Surgeon General Vivek Murthy called vaping out for being a scourge against public health despite its possible contributions. Yeah, Trump removed Murthy. However, Trump’s Surgeon General replacement, Jerome Adams, has compared vaping nicotine to injecting heroin. Former FDA commissioner Scott Gottlieb, a Trump appointee like Adams, did his best to “throttle” any adverse policymaking against vaping. However, he changed his tune when he declared the “youth vaping epidemic” and has openly supported prohibition policies. Alex Azar, the secretary of Health and Human Services has also been open about Trump’s blank check management style. By extension, directly and indirectly, Trump has advanced the war on nicotine. My remarks are not to criticize Godshall. I consider myself an ally to Godshall, and we likely agree on much. However, I still feel it isn’t accurate to not also blame Trump for much of the vaping industry’s challenges. I also view this in the context of a larger war on drug users pushed by Trump. Having been on the user end of drug use (including nicotine, cannabis, other harder drugs (I’ll tell you all later), we need to stand up against liberal and conservative messages that push paternalistic ideas of society. In the simplest form, Trump is being swayed by prohibitionists that he appointed or that remained from his predecessor’s administration. However, it is my interpretation that Trump has been proactive in furthering those agendas making him an ally of prohibition rather than harm reduction. The flavor ban declaration is evidence of that.
– Michael

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