Maryland Comptroller Peter Franchot this week announced a first-in-the-nation statewide ban on disposable flavored e-cigarettes (aside from menthol). This came as something of a surprise in the corridors of the State House as lawmaking is generally seen as a legislative prerogative, and the General Assembly is in the midst of debating similar reforms — only tougher. House Bill 3 and Senate Bill 233, submitted as emergency legislation, would ban the sale of all flavored tobacco products within the state and not just those associated with electronic smoking devices. The proposal has some powerful allies including sponsor Dereck Davis, chair of the House Economic Matters Committee and Attorney General Brian Frosh.
Make no mistake, flavored e-cigarettes including such varieties as cherry crush, blueberry ice and pineapple lemonade deserve to get the boot. They attract underage vaping like flies to honey, and that’s become something of a health crisis. An estimated 28% of high school students and 11% of middle school students reported using an e-cigarette in the past month, according to a national survey published last year. The U.S. Food & Drug Administration recently began enforcing new federal restrictions on flavored e-cigarettes, but the rules don’t cover disposables.
In announcing his own rules, in consultation with an electronic smoking device “task force” he assembled last October, Mr. Franchot said that it was his "legal and moral responsibility to protect consumers, especially children, from the hazardous substances contained in these unauthorized products.” Yet how these products become “unauthorized” makes a difference.
It’s not clear whether Mr. Franchot has the legal power to decide that vaping devices and refills that were sold on the shelves of hundreds of Maryland stores last week are suddenly banned today. And its concerning that he took such unilateral action when the legislature is in the midst of examining broader measures and while knowing that whatever regulatory power he may possess is about to go away. The end result is that his actions appear not as those of a responsive regulator working in concert with lawmakers for the common good, but of someone seeking the spotlight, who deliberately distances himself from the General Assembly’s leaders to burnish an outsider status and as a politician focused laser-like on an already-announced run for governor in 2022.
A spokeswoman for Mr. Frosh says neither he nor the assistant attorney general assigned to the comptroller’s office were consulted about the regulations prior to Monday’s announcement. A spokesman for Mr. Franchot insists that the assistant attorney general assigned to the office “was informed of the agency’s course of action prior to the announcement and raised no concerns or objections.”
We would urge lawmakers to move forward with the task of actually rewriting state law to ban flavored tobacco products, which would go into effect May 1. Tobacco industry officials are likely to fight it tooth and nail, particularly its inclusion of menthol products, which are aggressively marketed to young people but also quite specifically to African Americans. Nor will it go unnoticed that banning such products will have a major impact on tobacco-related tax income to the state, perhaps as much as $70 million per year at a time when the General Assembly is looking for new revenue to finance higher teacher standards and pay and other reforms recommended by the Kirwan Commission. But those tax dollars are trivial compared to the health and welfare of young children, as vaping can lead to nicotine addiction and is harder to detect than traditional smoking. And there’s no question that the action would be more permanent, let alone sweeping, than anything the comptroller can offer.
This is not the first time we have questioned Mr. Franchot’s agenda and whether his commitment to issues is sincere or mostly, as the Bard might say, a lot of “sound and fury signifying nothing.” Surely, if he had the same depth of concern regarding children’s health as he does about whether Maryland K-12 schools should start before or after Labor Day, flavored e-cigarettes would have been banned years ago (if he had the power to do so now or then). Prior to the start of the legislative session in Annapolis, the comptroller’s allies had expressed hope that lawmakers might restore his regulatory authority this session instead of shifting it to a new Alcohol and Tobacco Commission. This episode does not help that cause.