Coming under scrutiny in the 2017-18 session of the New York State Legislature, electronic cigarettes and other vapor products have been the subject of various proposed bills. Pending legislation could affect excise taxation, discounts, and warning labels. Some bills would even prohibit certain types of vapor products.
On the subject of excise tax, three bills are pending: S07335 would impose upon e-liquids an excise tax of 25¢ per fluid milliliter, and A01138 and S01089 (identical) would treat e-liquid cartridges as "tobacco products" subject to a tax of 75% of the wholesale price.
The Memorandum in Support of A01138 states that, "[a]s the State continues to fight to lessen the smoking population as a public health measure, allowing an addictive drug like nicotine to be sold without tax is simply counter intuitive." The bill's sponsor disputes the view that e-cigarettes are "a safe alternative to traditional forms of smoking, i.e. cigarettes, cigarillos and many other smoking related ways of inhaling nicotine," and he further asserts that "the FDA is unaware of what is in the majority of these devices."
Three bills address discounted products.
A02103 and S04576 would, among other things, prohibit sales of e-cigarettes for less than the listed price and also prohibit the use of coupons or other discounts in e-cigarette sales. Of note, these bills also target cigarettes and other tobacco products.
According to the Memorandum in support of A02103, "[t]he use of coupons, especially those marketed to young people, reduce prices for tobacco products and increase smoking among youth. Discounts, particularly those marketed to youth, entice consumers, including price-sensitive youth, to purchase deadly and highly addictive products." The sponsor based this bill upon existing New York City law.
Taking a narrower approach, S05266 would prohibit sales "at no cost or minimal cost or with coupons or rebate offers" of only flavored e-cigarettes.
The sponsor cites what she refers to as the "more and more reports of the products exploding" for "additional concerns arising over the safety of these products when used by consumers."
Two bills would prohibit certain types of vapor products.
A08688 would prohibit the sale of flavored e-liquids and flavored e-cigarettes. According to the Memorandum in Support, "This bill would eliminate the temptation for young people in New York State to try flavored electronic cigarettes and in turn reduce the number of people who become regular users of tobacco products."
A00325 would prohibit refill sales of e-liquid, and each violation would be punishable by a civil penalty of up to $500. To be clear, the prohibition would "not apply to any liquid nicotine, electronic liquid or e-liquid that is contained in a prefilled, sealed cartridge that is sold, marketed or intended for use in an electronic cigarette" and apparently would apply only to so-called "open systems." According to the Memorandum in Support, "This legislation brings an awareness of the extreme dangers of these products by banning them from store shelves with the goal of saving people's lives."
As a cadre of legislators has made e-cigarettes a priority, any legislative successes could also foretell a prioritization of enforcement efforts vis-à-vis e-cigarettes. Obviously, this legislation could have serious effects on e-cigarette manufacturers, distributors, and retailers in New York State. We will continue to monitor for further developments.
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