Capital Beat: N.H. rolling out e-cigarette regulations as state gets first vaping illness

It was only a matter of time: the first vaping-related illness in New Hampshire.

Yet hours after New Hampshire’s Department of Health and Human Services reported it, and amid a sudden national surge in vaping-induced illnesses, Gov. Chris Sununu was adamant. The governor’s office will not institute the kind of ban on vaping products Massachusetts Gov. Charlie Baker put into effect late last month.

“No, the governor does not support banning vape products,” Sununu spokesman Ben Vihstadt told the Monitor last week.

Instead, Sununu said in his own statement, the state should focus on teen use.

“New Hampshire is actively participating in the CDC’s national investigation into unexplained Vaping-Associated Pulmonary Illness,” Sununu said, referring to the Centers for Disease Control and Prevention. “Right now, we are focused on curtailing the surge in youth vaping.”

The issue of vaping has received extra attention in recent weeks. On Monday, state health officials announced that a department investigation had revealed that a Sullivan County adult had “developed respiratory symptoms and had chest imaging showing evidence of lung injury.” The symptoms, Health and Human Services officials said, were “consistent” with a growing national trend: a string of apparent vaping-related illnesses.

As of Friday, 1,299 Americans had fallen ill from similar symptoms after using vaping products and 26 people have died, according to the CDC. The deaths have largely occurred among older adults, but one case last week involved a 17-year-old boy. The cause of the outbreak, which has emerged in recent weeks, remains unknown.

New Hampshire may not have an outright ban on vaping products, but there has been some movement toward greater state control over the e-cigarette industry as a whole. Last month’s compromise budget, signed by Sununu on Sept. 26, contained a raft of new regulations covering both vaping retailers and users.

Whether they’re the perfect amount of state oversight or not enough is a question of who you ask.

First, let’s review what’s been newly added to the books:

The new policy budget bill, House Bill 4, ushers in an overhaul of the very definition of e-cigarettes when it comes to bans on underage use.

For years, youth vaping laws applied only to tobacco-based e-cigarettes – any product that “provides a vapor of pure nicotine mixed with propylene glycol to the user as the user simulates smoking.” The industry – and the black market – has since moved far past that.

And so the new law broadens that definition. A “device” comprises a product that aerosolizes or vaporizes a substance “including, but not limited to, nicotine or cannabis.” “E-cigarettes” and “e-liquid” may or may not contain nicotine and cannabis as well.

By widening the definition, the law catches far more products that might have been technically exempt from underage sales. Starting now, anything that functions as a vape – whether or not it’s loaded – can’t be sold to those under 18 and can’t be possessed by minors either.

Soon, that smoking law will expand to those under 19. Starting in January, all of New Hampshire’s smoking products – from cigars to cigarettes to vaping devices – will only be available to those 19 and older.

The intent behind raising the minimum age, hammered out in negotiations and pressed for by Democrats, was to reduce the ability for high school seniors to obtain the products and distribute them to younger classmates.

But Sununu was not exactly in favor.

“It was a compromise,” he said diplomatically last month, when asked about the increase.

These days, with greater national attention on vaping sicknesses, the governor has changed his tune on that measure.

“The compromise budget I signed last month raises the smoking age to 19, which will help keep vapes out of New Hampshire’s high schools – and that’s where our focus should be,” Sununu said in a statement Monday.

The budget institutes a new tax on vape products – something ardently sought by House Democrats and less favored in the Senate. That tax applies different rates for different e-cigarette products: a 30 cent per milliliter tax for closed cartridges, and an 8% tax for open ones.

It’s a provision that Sununu himself has favored – and one that corner shops and tobacco stores pushed back against.

Perhaps the most sweeping change the budget brought in for the e-cigarette industry involves licensing.

The trailer bill requires that any store selling e-cigarettes obtain a license as they would for tobacco and liquor. That license subjects the retailers to a long list of rules set down by the Liquor Commission, some of which may be updated in the coming months.

And it allows the commission to send investigators into the stores to inspect those licenses.

The new developments certainly represent changes to vaping law. But whether they are up to the task of meeting the challenges of the current spike in vaping related illnesses – an increase not yet fully understood by the Centers for Disease Control and Prevention – is a matter of debate for stakeholders.

Kate Frey, vice president of advocacy at New Futures, a health policy organization, said that the new laws showed positive movement. But now must come with enforcement.

“The first move is moving as fast as possible on the licensing and regulating piece,” she said.

Some are advocating for an even simpler approach: avoidance of vaping altogether. In a statement Monday, the state’s epidemiologist, Benjamin Chan, said that amid no clear answers so far on what is causing the illnesses, nothing can be taken for granted.

“... Even though a majority of patients report vaping THC products, some have reported only vaping nicotine products,” Chan said. “Until we have more information from the national investigation, no vaping is considered safe.”

Frey stopped short of advocating for a ban on vaping products. But she said more precautions need to be taken until the causes are more certain – particularly around youth prevention.

“We have to do everything we can to keep these products out of young peoples’ hands,” Frey said. “... Licensing and regulating is a first good step, because you’re making sure you’re not selling it to people underage. But I think what we should look at in the future is banning flavored products.”

And Frey said more needs to done by the state to regulate cannabis-related vaping products, which are presently legal for those who qualify for therapeutic cannabis.

DHHS, which oversees the rules surrounding the alternative treatment centers that are allowed to dispense those products, should enact tighter regulations over the distribution of vaping with tetrahydrocannabinol (THC) – the psychoactive component of cannabis – and also attempt to educate cannabis users on the potential dangers of vaping, Frey said.

“I just find it ironic that on the one hand the epidemiologist is saying you shouldn’t vape at all…” she said. “You have a public health agency that says you shouldn’t vape, but they’re the people that regulate the places that sell all of these products.”

In a statement Friday, a spokesman for the DHHS, Jake Leon, said that the Division of Public Health Services is currently attempting reach out to people on the medical marijuana program, advising them to seek help if problems arise.

“(The Division of Public Health Services) is working closely with the Therapeutic Cannabis Program Alternative Treatment Centers to educate qualifying patients that may use these products about monitoring for symptoms and promptly seeking medical attention if they have concerns about their health,” Leon said.

Leon did not mention any additional regulations being considered – which would likely need legislative approval through the joint Rules Committee. But he said the department is presently participating in a national CDC investigation of the illnesses.

And he reiterated several points, including that early evidence suggests that “products containing THC play a central role in the outbreak” and that the U.S. Food and Drug Administration had recommended that consumers not use any THC products.

“The best way for the public to avoid potentially harmful health effects is to not use any vaping products,” Leon said, echoing Chan’s advice.

Representatives of the vaping industry, meanwhile, see the problem slightly differently: Rather than seeing an issue with all forms of vaping, the problem lies with black market products specifically, they say.

That’s why Alex Moody, co-founder of Kinetik Labs, a Franklin company that produces vaping e-liquids, supports the new licensing requirements in New Hampshire’s budget – it’ll force out bad actors, he says – but argues a full ban on vaping products would backfire.

Moody said no conclusive evidence has shown tobacco-based products – the focus of his industry – are behind the illnesses. The focus should be on black market products that involve THC, he said.

“When you attempt to ban the legal regulated market in order to solve a black market problem, it inherently fails,” he said Friday. “All you do is you bolster the black market.”

For now, the governor says, that option’s off the table. New Hampshire is in no danger of becoming Massachusetts soon.”