ALBANY – In the words of one tobacco lobbyist: “These are dangerous times."
That danger to both the tobacco and e-cigarette industries, which has the Capitol hallways filled with industry lobbyists, centers on efforts by some key state lawmakers who want to put a major dent in tobacco and vape companies' financial bottom lines by banning or restricting popular flavored products.
While some consumers may think vaping and tobacco interests work hand in hand – a view fueled by some Big Tobacco investments in e-cigarette companies like Juul – the two sectors are working very much on their own in this 2020 confrontation in Albany and, increasingly, jockeying against each other over who might come out on the losing end of this debate.
A flavor ban on vaping products, beyond the recent partial federal prohibition involving flavors from cherry to coffee, appears the more likely route before session ends in early June, especially given publicity over high teen vape usage.
But the real money being spent on lobbying, grassroots campaigns and online outreach efforts is over plans to try to ban flavored tobacco products, whether in cigarettes, cigars or chew products.
The tobacco industry's main mission with any flavor ban: Get menthol exempted from such a prohibition.
• Upward of 40% of cigarette sales at convenience stores and bodegas across the state are menthol-flavored ones.
• The state, according to industry estimates, takes in anywhere from $350 million to $500 million a year in menthol cigarette excise tax revenues, the most popular flavored cigarette product.
It is a lobbying battle – in which tobacco and vape companies will spend at least $6,000 every day through the year on a network of some of the most seasoned lobbyists with long ties to Democratic and Republican lawmakers and to Gov. Andrew M. Cuomo, according to a search of state lobbying records.
Engaged are dozens of lobbyists of all backgrounds: former legislators, former top staffers and old Albany hands who know the Capitol workings as well as anyone, as well as insiders with long ties with some lawmakers based on anything from geography to partisan politics to racial and ethnic ties.
That cost to defeat the flavor ban ideas – paid by tobacco companies like Altria and R.J. Reynolds, and large and small vaping companies like Juul and Kenmore-based Magellan Technologies – does not include a still-unknown amount that will be spent this year on political donations and other means to press their cause.
“The tobacco lobby knows that the fight over flavoring is a life-and-death struggle for the future of the industry," said Blair Horner, executive director of the New York Public Interest Research Group.
Menthol: A racial component
Typically, tobacco battles at the State Capitol come down to arguments over health and taxes and jobs. This year, there is another growing factor in the equation: race.
Menthol cigarettes provide a cooling effect for smokers, making it easier to inhale and better able to suppress coughs. Federal health officials say menthol cigarette sales are increasing, especially among teens and young adults, and that quitting menthol cigarettes is harder than other cigarettes.
But menthol has also been heavily marketed in African American communities, especially by North Carolina-based R.J. Reynolds, or RJR. The company expects to spend, at least, $369,000 on retainer contracts with lobbyists in New York this year, and those hired guns are spending their time these days pushing back on a bill that would ban all tobacco flavors – including menthol.
A federal study shows that African Americans are the chief users of menthol cigarettes. Seventy percent of African American smokers between ages 12 and 17 use menthol cigarettes, according to the U.S. Centers for Disease Control and Prevention. The agency has noted that promotion of menthol cigarettes has been heavily targeted by the industry toward African Americans “through culturally tailored advertising images and messages."
Assemblywoman Rodneyse Bichotte is a black woman from Brooklyn. Her father, a jazz saxophonist with a Haitian American big band, died 27 years ago from lung cancer after a long addiction to menthol cigarettes, she says. “I have seen and lived in a community where menthol flavored tobacco was a vice to get people hooked on tobacco in African American communities," she said.
“In our community, they cannot even think about smoking without menthol," she added.
Bichotte was recently tapped as the powerful Brooklyn Democratic Party chairwoman. And she wants to use that influence to get her bill – A8808 – pushed through both houses this session so that flavor tobacco products, including menthol, are banned. State Sen. Brad Hoylman, a Manhattan Democrat, has the bill in the Senate.
In her quest, she’s been blasting Big Tobacco. And she’s been criticizing some black leaders opposing her bill, such as the Rev. Al Sharpton, whose organization has been a recipient of funding by R.J. Reynolds.
A couple of weeks ago, Bichotte’s bill was on the Assembly health committee agenda, and health groups thought it would be approved. But Bichotte said she pulled it from consideration after some New York City Democrats voiced concerns about the bill’s “narrative." She said they mistakenly believe that it would lead to arrests of black people on the streets if they were caught smoking menthol cigarettes.
“Right now, we’re tweaking the bill," she said, to state clearly that the measure’s sanctions are aimed solely at distributors, manufacturers and retailers – not consumers. “We want to make sure everyone is comfortable," she said of her colleagues.
An industry presses back
Altria, makers of Marlboro and other brands, is in line to spend nearly $800,000 this year on lobbying in New York; much of it is on state lobbying, some on local ordinance lobbying, according to a review of lobbying records and retainer agreements for the Virginia-based firm.
Other big lobbying spenders: Juul ($516,000); RJR ($369,000); a cigar trade group ($57,000); a state and national vapor association ($150,000); Top Tobacco ($78,000); SI Group Client Services ($55,000), and others. In all, they will spend more than $2 million this year in New York State.
Kenmore-based Magellan Technologies employs 200 people locally; it makes and distributes flavored vaping products nationwide. It is spending $120,000 on a single lobbyist: Joel Giambra, the former Erie County executive. (Former Buffalo Assemblyman Sam Hoyt, who ran Cuomo's economic development agency in the region, also was signed up as a Magellan lobbyist.)
Company co-owner Jonathan Glauser said a total vape flavor ban will “not only kill the industry, it will probably kill a lot of people." His flavor products, regulated by the federal government, are used by adults who want to quit smoking tobacco.
“Our message is very clear. Let’s work together to put some common sense regulations on our industry that not only completes the stated goal of keeping youth away from this product, but let’s not destroy an industry and put people at risk by taking the easy way out," he said.
The vape and tobacco industries make the same claim about flavor bans: People will still want the products and they will be able to freely purchase them tax-free from an already thriving black market or from Native American businesses as found on Seneca Nation lands. The Tax Foundation, a private group, in December said New York – at 55.4% – had the highest level of inbound cigarette smuggling sales.
“By unfairly targeting adults that prefer menthol cigarettes, this ban exacerbates an already widespread and dangerous illicit market," said Kaelan Hollon, a spokeswoman at North Carolina-based RJR, whose products include menthol king Newport.
“The brunt of the proposed menthol cigarette prohibition would fall disproportionately – and unfairly – on African American adults," she said, adding RJR believes there is no evidence to suggest that menthol cigarettes “adversely affect initiation, dependence or cessation” by smokers.
The governor’s 2020 budget plan seeks new crackdowns on flavored nicotine vaping products, but it is silent on tobacco flavorings, such as menthol. Industry officials note that Cuomo did not propose to eliminate menthol tobacco sales because, in part they believe, the state is facing a $6.1 billion deficit and the state can ill afford to lose so much in cigarette tax revenues.
James Calvin, the head of the New York State Association of Convenience Stores, said upward of 40% of cigarette sales in his members’ stores are menthol flavored and virtually all other products – pipe tobacco, chewing tobacco and cigars – are flavored.
“If the Legislature decides to ban menthol cigarettes it will make menthol cigarettes disappear from our stores, but it won’t make menthol disappear from communities of color or any part of New York State," Calvin said of an illicit market that already has “an apparatus in place in New York."
Groups that have pressed for more tobacco and vape controls have heard those industry claims in the past, such as when New York dramatically boosted tobacco taxes. Since then, tobacco use has gone down dramatically.
Andrew Hyland, the top tobacco researcher at Roswell Park Comprehensive Cancer Center, said menthol tobacco and vape products are used by New York consumers more than any other flavored product. He said Roswell has surveyed menthol cigarette smokers and asked what they would do if menthol flavor was banned. The result: a third said they would quit smoking, a third would find other ways to get the product and a third would switch to a non-menthol product.
Native American retailers and others that flourish in the tax-free cigarette marketplace would likely expand flavored product offerings if New York bans them, but, Hyland added: “A menthol cigarette ban would have a huge impact on reducing cigarette consumption and reducing lung cancer deaths.”