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Late last week, the New York State Assembly passed S. 7506-B, a budget bill, which outlaws sales of flavored nicotine vapor products, and prohibits online sales of all nicotine vapor products. The bill, which was signed into law by Gov. Andrew Cuomo on Friday, was part of the larger budget bill that is, in large part, intended to ensure the state can continue operating during the current coronavirus pandemic. However, the lack of public comment and the ever-shifting bill title and numbers have left some in the tobacco harm reduction community frustrated.

The first portion of the bill, which goes into effect 45 days after it was signed, states that “sales of vapor products in flavors other than tobacco are prohibited.” The bill does provide an exemption for any product that has received a premarket approval order (PMTA) from the Food and Drug Administration, however it does not defer to the federal standard allowing manufacturers to market products for one year following FDA’s acceptance of their PMTA application. As we mentioned last week, the FDA recently asked a judge to extend the original May 12th deadline of those premarket applications by 120 days.

The bill also includes these other regulations which go into effect on July 1st, 2020:

  • Pharmacies are no longer allowed to sell any nicotine product that isn’t an FDA approved smoking cessation therapy.
  • Online sales of nicotine vapor products are banned. The penalty for selling or shipping these products to a consumer in NY is a Class A misdemeanor and carries a fine of $5000 or $100 per product.
  • A person other than a common or contract carrier can still transport nicotine vapor products, but there is now a limit of 500 milliliters or 3 grams of nicotine.
  • Manufacturers must post a detailed ingredient list including a disclosure of “the nature and extent of investigations and research performed by or for the manufacturer concerning the effects on human health of such product or its ingredients.”
  • Manufacturers are also required to list “each byproduct that may be introduced into vapor produced during the normal use of such e-cigarette.” NOTE: This requirement does not apply to any other tobacco product.

It is worth noting that this bill differs from the pending national “flavor ban” that was in the news last month. H.R. 2339 or the Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act of 2020 included a ban on flavored tobacco products like cloves and menthol cigarettes as well as non-tobacco flavors for electronic usage. The New York ban does not include any language for flavored combustible tobacco products, only nicotine vapor products.

Gov. Cuomo has been consistently fighting to ban safer alternative nicotine products for some time, even as many health experts including Dr. Ray Naiura, the chair of the Department of Epidemiology at NYU has pointed to their known benefits. Dr. Niaura testified before the subcommittee on consumer and economic policy last July, where he cited a study published in the New England Journal of Medicine which demonstrated that nicotine vapor products are twice as effective for people looking to quit smoking, when compared to nicotine patches or gum.

New York becomes the fourth state in the US to pass such a law, following similar legislation in Massachusetts, New Jersey and most recently Rhode Island – whose Governor bypassed the state legislature and created a permanent rule in late March. Florida’s legislature recently passed a similar ban, but Florida Gov. Ron DeSantis has yet to sign it into law.

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