Washington lifts flavored vape ban, but for how long?

Despite the lifting of the temporary flavored vape ban on Feb. 3, vapor product shops across the state are cautious to celebrate as a legislative battle continues could have a large impact on their businesses.

Last October, Governor Jay Inslee and the Washington State Board of Health placed an emergency temporary ban on the sale of flavored vapor products in response to an outbreak of respiratory injuries across the U.S. that were related to vapor products in addition to growing concerns about the increased use of vapor products by young people.

The Centers for Disease Control and Prevention (CDC) announced that the cause of the respiratory injuries stemmed from vapor products that contained vitamin E acetate, an additive used to dilute the oil in some vapor products, typically used by unverified online sellers.

At the urging of Gov. Inslee, legislation was proposed that would make the temporary flavor ban permanent, but lawmakers have so far backed down from the proposal, following amendments made on Feb. 10 and March 2, that would allow for the sale of flavored vapor products in 21 and over retail locations.

Originally, Senate Bill 6254 required all vapor product manufacturers to be licensed by the Liquor and Cannabis Board (LCB) and required manufacturers and distributors to submit a list of product ingredients to the Department of Health (DOH). The bill also permitted the LCB to restrict the sale of vapor products if the DOH had determined the product may be hazardous to human health. Additionally, the bill banned the sale of vapor products containing vitamin E acetate and limited the sale of flavored vapor products, other than tobacco-flavored products, to retail outlets restricted to individuals 21 years old or older. The bill also would’ve placed limits on nicotine concentrations in vapor products at two percent as well as limits to the size of refillable bottles and finally placed a 37 percent excise tax on all flavored vapor products.

While the amendment allows for the sale of flavored vape products in 21-and-older retail locations, its the 37 percent tax and the bottle and tank size limits that have vape shops concerned about their businesses, especially after some just barely survived the temporary ban that came after the implementation on a $0.09 per milliliter tax on “vape juice,” in October.

Quinn Richards, owner of Cloudy Vapor in Poulsbo, said prior to the legislative amendment. At the time Richards believed that SB6254 would bring about an end to vape shops in Washington state with all the restrictions and limitations.

“It would basically ban all flavors other than tobacco, and then there would be a 10-milliliter rule, where we can only sell 10-milliliter bottles and two-milliliter tanks, which is insane,” Richards said, placing a small bottle on the counter. “Usually tanks hold, five, seven to ten milliliters … basically vape shops would be ending in Washington.”

Prior to the $0.09 tax, Richards had closed his shop in Port Townsend, knowing that if he hadn’t he would have gone bankrupt. The Poulsbo location barely survived the temporary ban but had record sales when the ban was lifted.

Jacob Johnson, owner of Granite Vapor in Silverdale has been testifying in Olympia along with dozens of other business owners, members of Smoke-Free Washington and the Washington Retail Association, which would be affected by the bill even in its amended form.

“I met with several senators and I think a lot of them feel that they just want more information to make sure that they create these bills correctly because as it seems a lot of them just don’t have the correct information or just aren’t knowledgeable, which is completely understandable, considering they’re not in our industry,” Johnson said.

Johnson also argues that these efforts will do nothing to deter youth from accessing vapor products, more likely it will drive more youth to online and black market products, which takes money out of Washington State. He also argues that the bottle and tank size restrictions will create more unnecessary waste.

“None of this benefits us or Washington State, so you know we need to find a middle ground to help each other,” Johnson said.

Fortunately for Richards and Johnson, substitute bills and amendments were proposed and voted on in the Senate Ways and Means Committee on March 2.

The two substitute bills were proposed by Senator John Braun (R- Chehalis) and Senators Dave Frockt (D-Seattle) and Manka Dhingra (D-Kirkland).

Sen. Braun proposed striking the entire bill and replacing it with four different sections. The substitute bill would ban the sale of vapor products with labeling or packaging that would be “attractive” to minors, require retailers to use age verification technology on purchasers, ban the sale of products containing vitamin E acetate and would ban the sale of disposable vapor products. Sen. Braun’s proposed substitute failed during the caucus session.

Sen. Frockt and Sen. Dhingra proposed a second substitute bill that had similar elements to Sen. Braun’s, such as banning the sale of products containing vitamin E acetate and disposable vapor products. Some differences were that the bill would add menthol to the list of flavors to be banned from non-21-and-over shops. It would also exempt 21-and-over-stores from nicotine content restrictions and would give authority to the Washington Department of Health to ban flavored vape products. This proposed bill passed onto the Senate Rules committee for a second hearing along with several proposed amendments.

There were eight proposed amendments to the original bill presented on March 2, only three passed.

Sen. Bob Hasegawa (D-Beacon Hill) proposed about half of the amendments, one of which was to remove the 37 percent excise tax completely, that did not pass, but Sen. Mark. Mullet (D-Snoqualmie) had a similar proposal to reduce the excise tax from 37 percent to 18.5 percent, which did pass. Of the taxes collected, 67 percent would go into the Foundation for Public Health Fund, with the other 33 percent going towards initiatives to prevent youth smoking and vaping.

Sen. Hasegawa’s other amendment proposals would have removed the limit on container and tank sizes on vapor products, allow 21-and-older vape shops to offer product tastings and give away products for free (as part of a promotion), of these, only the allowance of 21-and-older vape shops to offer product tastings passed.

The bill, now SSB6254 passed into the Senate Rules Committee for a second reading.