Tagged Tobacco

KHN’s ‘What The Health’: Spending Bill Slowdown

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The fiscal year started a month and a half ago, but Congress has still not agreed on an annual spending bill for the Department of Health and Human Services – or any of the other annual spending bills that fund the government.

Meanwhile, Congress IS moving on efforts to further restrict tobacco and vaping products, particularly to limit their marketing to underage users. The Trump administration has been vowing to use its own authority to crack down on a youth vaping epidemic, but so far has not acted.

The administration is moving on the drug price front, however, filing a lawsuit against drugmaker Gilead for allegedly infringing a government-owned patent on a drug regimen to prevent HIV.

This week’s panelists are Julie Rovner from Kaiser Health News, Rebecca Adams of CQ Roll Call and Alice Miranda Ollstein of Politico.

Rovner also interviews Dan Weissmann, host of the podcast “An Arm and a Leg,” about why health care costs so much and what patients can do about it. KHN is co-producing the podcast’s new season.

Among the takeaways from this week’s podcast:

  • Among the partisan arguments holding up the HHS funding bill are disagreements on spending for family planning programs and the amount of an increase for HHS as a whole.
  • A House subcommittee this week approved new regulations that would limit flavors for vaping and other tobacco products. But that comes as the administration appears likely to step back from Trump’s earlier vow to outlaw flavored products.
  • Some lawmakers and administration officials suggest that any legislation to prohibit flavored e-cigarette products should include carve-outs for some groups, including small businesses that cater to vapers and to members of the military.
  • The recent revelation that Google is working with a major health care system to analyze patient records is raising concerns about consumers’ privacy. That and other recent issues surround health care tech may signal that the federal privacy law, HIPAA, needs to be updated.
  • The Trump administration’s suit against Gilead seeking to bring down costs of its HIV pre-exposure prophylaxis drug may signal that the government is ready to take on other companies with high price tags on drugs developed with federal support.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read, too:

Julie Rovner: The Philadelphia Inquirer’s “A Philly woman’s broken back and $36,000 bill shows how some health insurance brokers trick consumers into skimpy plans,” by Sarah Gantz.

Rebecca Adams: CQ Roll Call’s “Surprise billing fight highlights hurdles for bolder health care changes,” by Mary Ellen McIntire.

Alice Ollstein: Politico’s “Trump allies received hundreds of thousands of dollars under federal health contract,” by Dan Diamond and Adam Cancryn.

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A Regulatory Haze: Vape Marketers Are Online, Creating New Headaches For Feds

In one picture, Hannah — or, as her 133,000 Instagram followers know her, @__justpeachyy — reclines in a car, her blue vape accenting the matching tattoo ink on her arms. Her curls are messy by design, and eyes heavily lined. (The post has more than 1,300 likes.)

In another, she gazes at the camera, her hair brushing against her right eye, her blouse slightly unzipped. You swipe left to see the vape juice she’s using today: a mix of strawberry custard, sugar cookie and vanilla custard, paired with, this time, a black device (2,994 likes as of Nov. 2).

As Washington scrambles to crack down on the nascent vaping industry — particularly how it courts young users — so-called influencers, like Hannah, whose online personas exist in a haze of glamour and celebrity, are exposing critical gaps in how government officials regulate the marketing of electronic cigarettes. (Hannah did not respond to requests for an interview.)

Tobacco marketing researchers and anti-smoking advocates say regulators — namely the Food and Drug Administration and Federal Trade Commission — are ill equipped, relying on rules and standards that fail to understand modern marketing.

Eschewing the glossy magazines and television ads favored by tobacco giants, brands like Juul, Logic and Myblu have leveraged sophisticated internet campaigns, relying heavily on Instagram, the photo-sharing platform used by about three-quarters of American teenagers. They have marketed from their own accounts but now benefit from the free advertising provided by influencers: seemingly unaffiliated people who promote vapes to their sizable online audiences.

Their reach is global — a complication, since American regulations don’t necessarily apply abroad.

Liam Gunther of Calgary, Alberta, has 49,000 followers on his account @chufflord. One video post, scored to the Etta James song “At Last,” depicts his morning ritual. He runs his fingers through his bed head, turns to the right and smiles. In the next shot, the objects of his affection are on the nightstand: his Canadian flag-clad vaping pod system and e-liquid (both of which he promotes in the caption). “HOW VAPORS WAKE UP,” it reads in all caps. “DO YOU GRAB YOUR PHONE OR VAPE FIRST??” (Gunther also declined to provide an interview.)

“All the rules for limitations on tobacco were written before social media existed,” said Dave Dobbins, chief operating officer at Truth Initiative, which advocates for enhanced tobacco regulations. “It didn’t even contemplate social media.”

It’s a gaping hole, especially since science increasingly suggests that nicotine vapes may harm young users’ brains — and are serving as a transition to actual tobacco. Young users are more likely to adopt e-cigarettes when they engage with social media-based advertising.

Some influencers use the hashtag #nominors, which has over 10,400 posts and, in theory, sets a boundary. In practice, it can do the opposite and attract underage traffic.

The hashtag #vaping alone has more than 9 million posts, featuring elaborate smoke tricks, e-juice flavors, attractive models and stylish vaping devices.

While federal agencies play catch-up, researchers worry it’s too little, too late.

In theory, a couple of rules govern marketing. Regardless of platform, e-cig advertisements cannot include demonstrably false statements — including unproven claims that the devices help people quit smoking, an argument often deployed by manufacturers and vape hobbyists. And on the internet, any marketing post must include a warning statement that says nicotine is addictive.

But, in practice, these restrictions mean little, researchers said.

“It’s been kind of a free-for-all on social media with vaping companies,” said Linnea Laestadius, an associate professor of health policy at the University of Wisconsin, who studies e-cig marketing. “Nobody’s really touched it yet.”

Prominent vape companies are savvy about skirting restrictions, said Dr. Robert Jackler, a physician at Stanford University who researches cigarette and e-cigarette advertising — which often suggests that vapes will help smokers quit, without being explicit.

“They advertise that they’re useful in transitioning from traditional cigarettes to vaping products, often with proxy terms,” Jackler said. “They use clever alternatives, like ‘switch’ or ‘alternative’ — without saying, switch from what.”

That’s one issue. The bigger factor is that the limited rules around social media haven’t anticipated how, precisely, a service like Instagram works.

The big companies aren’t posting much anymore — Juul’s account has been closed for almost a year, and Myblu hasn’t posted since last October. They don’t need to.

Instagram users often trust influencers more than they do brands, research suggests, and their posts are more effective in recruiting young users. They sport tattoos, ear gauges and piercings. Models are pretty, slim and perfectly made up. The most popular accounts have tens of thousands of followers, views and likes.

Some are certainly independent enthusiasts. But many have contracts with major vaping companies, receiving money or free products in exchange for posts featuring particular products. Juul alone has recruited thousands of influencers, according to an investigation by the House of Representatives’ Oversight Committee. (The company contests those findings, saying it has worked with fewer than 10 adult influencers.)

The FTC stipulates that any poster with corporate sponsorship must clearly disclose that relationship. But that rarely happens in a meaningful way.

Analyzing a random sample of 1,000 Instagram posts, Laestadius found that fewer than 10% of industry-backed influencers noted corporate sponsorship in their individual posts. Many simply mention the relationship in the bio of their profile page — easier to miss if you’re just scrolling through a feed.

Federal authorities are now trying to crack down. The FDA and FTC sent warning letters this summer to four companies that it said had paid influencers for marketing but failed to follow federal guidelines. According to information provided by the FDA, such letters are the first step in taking enforcement actions, which could include financial penalties.

Many experts said it’s unclear, though, whether these agencies have the bandwidth to enforce the existing rules — citing the number of accounts to follow and the sheer volume of activity. In fact, since Juul shut down its account, the number of Instagram posts with the company’s hashtag has continued to climb. (As of publication, there were more than 624,000.) And that’s only one of the relevant hashtags. Vapers use #vgod to share tricks — with 1.4 million posts and counting. There are 2.5 million posts under #cloudchasing, many of which are focused on vape tricks, and about 783,000 at #improof.

The sheer volume sparks another series of regulatory challenges.

Companies can disavow those posts as separate from their marketing strategy — even if they “lit the fire and fanned the flames” of that online community, Jackler said.

When asked about influencer-based marketing, Austin Finan, a Juul spokesman, said the company’s social media team works to find “inappropriate social media content” and remove it from the platform.

“We agree these types of social media posts are a serious problem,” he said.

Plus, the First Amendment makes it harder to craft regulations around marketing. Individual posters have specific protections that big companies lack. They could have more freedom, for instance, to say electronic cigarettes helped them quit smoking, Laestadius said, which Juul’s account legally couldn’t say. (E-cigarettes haven’t undergone the FDA’s process to be approved as medical quit aids.)

One example — from Hannah, @__justpeachyy: “I watched smoking destroy the health of my family, claiming lives that should be here today,” she writes in one post. “When I found a way to quit, all I wanted was to see more lives changed, and helped others drop the habit too.”

These challenges underscore why health officials and anti-smoking advocates are moving in another direction: to police platforms rather than posters by recruiting tech companies like Facebook (which owns Instagram), Snapchat and TikTok to remove content promoting vaping.

The American Medical Association in October asked Amazon, Microsoft, Instagram, Facebook and LinkedIn to prevent vape sales on their platforms. Matthew Myers, president of the Campaign for Tobacco-Free Kids, said his organization has had “constructive conversations” with Facebook and Instagram.

But none of those companies are legally required to make any changes — and, historically, have done so only in the face of public pressure, Jackler and Laestadius both noted.

“It’s a really complicated environment. It’s not as cut and dry as big tobacco,” Laestadius said. “It’s a combination of the big internet companies and the products — and our legal system isn’t designed to handle this yet.”

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Public Health

More Vapers Are Making Their Own Juice, But Not Without Risks

MENLO PARK, CALIF. — Danielle Jones sits at her dining room table, studying the recipe for Nerd Lyfe (v2) vape juice. The supplies she’s ordered online are arrayed before her: a plastic jug of unflavored liquid nicotine, a baking scale and bottles of artificial flavors that, combined, promise to re-create the fruity taste of Nerds Rope candy in vapor form.

This is Jones’ first attempt to make her own e-liquid after buying it for the past five years. Jones, 32, wants to be prepared for the worst-case scenario: a ban on the sale of the e-liquids she depends on to avoid cigarettes.

“Even though I haven’t touched a cigarette in five years, the pull is always there. It’s so easy to go and buy a pack. And I don’t want to do that,” she said. “The only route I can see going forward if there is a ban is to try to create the product myself at home.”

As more states, cities and even the federal government consider banning flavored nicotine, thousands of do-it-yourself vapers like Jones are flocking to social media groups and websites to learn how to make e-liquids at home.

Users on the forums — many of whom have been mixing their own e-liquids for years — describe the process as simple, fun, cheap and, with the proper precautions, safe. But if not done carefully, making e-liquids at home may pose risks including accidental exposure to high doses of liquid nicotine, the use of dangerous oil-based flavors and possible product contamination.

“To have people mixing their own e-cigarette liquid is crazy. These are very toxic chemicals,” said Stanton Glantz, a professor of medicine and the director of the Center for Tobacco Control Research and Education at the University of California-San Francisco. “If you drop a little bit of nicotine on your skin, it can send you to the hospital.”

Jones makes her own vape juice and orders the supplies she needs — small scale, plastic containers, a funnel, nicotine mix and artificial flavors — online.(Heidi de Marco/KHN)

Jones holds an unflavored liquid nicotine mix which she ordered online.(Heidi de Marco/KHN)

But Dr. Michael Siegel, a professor of community health sciences at Boston University, said many people are able to make vaping liquids safely at home, by seeking advice from other vapers and following a few safety measures, such as wearing gloves and goggles.

Siegel worries, however, about the risk of contaminated products as some people use the bans as an opportunity to make their own concoctions cheaply and sell them on the black market.

“Who knows what they’re going to put in there?” Siegel said. “This is just what happens when you use prohibition as a regulatory approach. What’s really needed in this situation is actual regulation of these products to try to make them as safe as possible.”

Michigan, Massachusetts, New York, Utah and Rhode Island have passed emergency rules to restrict the sale of e-cigarettes in response to the recent outbreak of vaping-related illnesses, which had sickened 2,051 people and killed 39 as of Nov. 5, according to the Centers for Disease Control and Prevention. In a potentially significant breakthrough, the CDC on Friday said it had identified a link between the mysterious outbreak and vitamin E acetate, an ingredient sometimes added to marijuana-based vaping products.

An additional 220 localities, including San Francisco and Los Angeles County, have passed restrictions on the sale of flavored tobacco products, according to the Campaign for Tobacco Free Kids. Details of an expected federal ban have not been released.

Jones squeezes some of her homemade vape juice into her iridescent purple vape mod.(Heidi de Marco/KHN)

Jones says she has no plans to stop vaping, despite warnings from the Centers for Disease Control and Prevention and mounting evidence that vaping may have serious health risks.(Heidi de Marco/KHN)

Following a rush of new bans in September, a Reddit forum on DIY e-juice saw a spike in membership, the group’s moderator reported. The daily number of new subscribers had long hovered around 30; that number spiked to 336 new subscribers in a single day, followed by more than 200 the next day, and it remained high throughout the month.

The group now has over 52,500 members sharing recipes for flavors such as white chocolate chip cookie, discussing how to make a watermelon that doesn’t taste “soapy,” and asking for tips on how to store supplies safely. Thousands of recipes for e-liquids in myriad flavors can be found in such forums and elsewhere on the internet.

Mike Olson, a resident of Illinois, has stockpiled a multiyear supply of highly concentrated nicotine because he’s so worried about a ban on the sale of flavored vapes. He said he uses gloves and safety goggles while handling it and stores it high up in a closet to keep it away from his dogs.

Not everyone, however, is so scrupulous about safety. A member of the Reddit group, for example, recently posted that he had accidentally sprayed liquid nicotine into his eyes as he tried to remove it from a vial with a syringe. He said his eyes were stinging and turned bright red within a minute, but he washed them out repeatedly. Other members responded with warnings to use protective equipment.

As states, cities and even the federal government consider banning the sale of the e-liquids, vapers like Jones are preparing to make their own liquids at home using social media groups and websites that give detailed instructions.(Heidi de Marco/KHN)

Jones mixes specific artificial flavors, including sweet tart, red licorice and marshmallow to recreate the taste of a Nerds Rope candy in vapor form.(Heidi de Marco/KHN)

Jones holds up the retail version of her favorite vape juice and her homemade version. Making her own e-liquid took her about 15 minutes to make.(Heidi de Marco/KHN)

Poison control centers have received 3,583 calls about exposure to e-cigarette devices and liquid nicotine so far this year, as of Sept. 30, according to the American Association of Poison Control Centers. About 50% of the calls are for children 5 years or younger.

Many of the safety risks of DIY vaping also apply to commercial products. The safety of inhaling food flavorings, for example, has not been established, even in commercially manufactured e-liquids. The Flavor and Extract Manufacturers Association certifies flavored liquids for safety — but only when they are used in food, said John B. Hallagan, a senior adviser to the industry group.

But the U.S. Food and Drug Administration does regulate commercial vaping products to some extent. And while critics say regulation has been inadequate, the agency has nonetheless conducted thousands of inspections of e-cigarette manufacturers and retailers. DIY e-liquids made at home for personal use do not fall under FDA jurisdiction.

Alex Clark, CEO of the Consumer Advocates for Smoke-Free Alternatives Association (CASAA), said he plans to warn the nonprofit’s more than 200,000 members about the dangers of making e-liquid at home.

Clark notes that people should not use flavors found in the baking aisle of a grocery store, such as peppermint oil and lemon extract, because heating and inhaling them can cause lipoid pneumonia, which is potentially life-threatening.

Though a first-time DIY-er, Danielle Jones may have better access than many people to advice on making e-juice safely at home. She works for a company that manufactures the cotton wicking used in vaping devices, sits on the board of CASAA and hosts a YouTube Live show about vaping.

Jones wants to make the process as simple as possible.

Though a first-time DIY-er, Jones may have better access than many people to advice on making e-juice safely at home. She works for a company that manufactures the cotton wicking used in vaping devices, sits on the board of the Consumer Advocates for Smoke-Free Alternatives Association and hosts a YouTube Live show about vaping.(Heidi de Marco/KHN)

She went online to purchase unflavored nicotine that had already been mixed with additives and diluted to her desired concentration. All she needs to do is add the flavors, also purchased online.

“This is complicated,” Jones says, consulting the Nerd Lyfe recipe, which calls for a mix of five flavors: Dragonfruit, Marshmallow, Rainbow Drops, Red Licorice and Sweet and Tart. She opens each bottle and carefully squeezes out a few droplets at a time, her gray hair pulled safely out of her eyes into a loose topknot.

Next comes the nicotine, which resembles a doll-sized plastic jug of gasoline. As she peels off the seal, she gets a little of it on her fingers. But that does not worry her: “This is the same as my commercially available product, and I get that on my fingers all the time.”

The whole process takes Jones about 15 minutes, and the solution is ready to vape. She heads out into her garden, gives the bottle a final shake and squeezes some into her iridescent purple device.

She takes a deep hit, great clouds of vapor billowing out of her nose and mouth. The air smells candy sweet, like inhaling a box of Nerds.

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Some Academics Quietly Take Side Jobs Helping Tobacco Companies In Court

In 1998, major tobacco companies reached a historic legal settlement with states that had sued them over the health care costs of smoking-related illnesses. But individual smokers have continued to sue, and to this day the tobacco industry remains tied up in hundreds of court fights with sickened smokers, or with family members who lost a loved one to cancer, heart disease or other smoking-related illness.

These days, tobacco companies no longer try to claim that cigarettes aren’t harmful — in fact, in an ironic reversal, a favorite legal defense in current cases is the argument that nearly everyone was aware of the dangers, even back in the 1950s. To shore up this controversial claim, known as the “common knowledge” defense, tobacco companies often enlist academics as expert witnesses. These professors are frequently historians or political scientists who tend to keep these lucrative side gigs walled off from the rest of their academic work. And their testimony can help tobacco companies limit damages.

Professor John Geer, a political scientist and dean of Arts and Science at Vanderbilt University, has consulted on behalf of tobacco companies from 2004 to at least mid-2018, according to court documents. The fees from legal firms represent as much as a quarter of his annual income.

In a 2014 deposition videotaped just off Vanderbilt’s campus, Geer was then vice provost. He stares straight ahead with an iced coffee at his side, reading glasses perched on his nose. A court reporter swears him in, and he begins to make his case:

“I have studied a lot of polls, and I’m confident of my opinion of the public being broadly aware of the dangers of smoking by the mid-1950s. The data are rock-solid clear,” Geer says in the video.

This argument is part of the “common knowledge” defense, but most of the witnesses who make it are not experts in the history of public health. Geer, for instance, specializes in political science and directs the Vanderbilt Poll. Others who have testified on behalf of tobacco companies are presidential historians or Civil War experts; they include prominent historian and author Stephen Ambrose, who died in 2002 of smoking-related lung cancer.

Stanford University history professor Robert Proctor, who wrote a book about the tobacco industry called Golden Holocaust, says most of these academics have never published any research about cigarettes because their opinions can’t stand up to peer review.

“They erase history by acting as if the things we know today have always been known,” he said.

Proctor is among a smaller group of academics who testify in opposition to tobacco companies, on behalf of smokers dealing with cancer, chronic lung disease and heart problems.

‘Under The Radar’

In his book, Proctor lists the professors known to have worked on behalf of tobacco companies. He says most expert witnesses avoid drawing attention to themselves.

“Experts often don’t even put it down on their CVs, their resumes — it’s absent,” Proctor said. “That’s one of the problems. It’s flying under the radar.”

Geer makes no mention of his consulting work — which pays more than $300 an hour — in his 17-page curriculum vitae. That document does include a detailed account of his pursuits on and off campus, down to individual guest lectures and media appearances.

“It’s not relevant,” Geer told Nashville attorney Kenneth Byrd during one deposition. “If I published something from this, I’d list it.”

Even the most active expert witnesses for the tobacco industry have not published research on tobacco. They include the University of Tennessee’s Robert Norrell, who studies race and the American South; and Elizabeth Cobbs, a historian at Texas A&M and Michael Schaller, a professor emeritus at the University of Arizona, who both focus on foreign relations. Their names are among 50 that appear in a database kept by Ramses Delafontaine, a historian who wrote a book about his peers working for the tobacco industry.

In depositions, some claim to make more than $100,000 a year for their work on tobacco litigation. None accepted requests for interviews.

Geer did issue a statement to Vanderbilt’s student newspaper, Hustler, saying he’s not a supporter of “Big Tobacco.”

“I truly understand and deeply respect those students who disagree with me having taken on this kind of work,” Geer told Hustler. “I do see their perspective and value it. Perhaps my fondest hope is that we all appreciate that disagreement itself is often an engine for change.”

Interpreting The Polls

The tobacco industry’s professors are primarily historians. Their expert reports pull newspaper clippings and excerpts from school textbooks to show judges that the smoker in question probably ran across warnings about cigarettes. And many of the industry’s witnesses lean heavily on the same Gallup poll from 1954 that indicates 90% of Americans had heard smoking could cause lung cancer.

But in 1998, Gallup told the tobacco industry to stop using this polling out of context. First, the company sent a letter to historian Lacy Ford at the University of South Carolina. (Ford had testified on behalf of R.J. Reynolds, citing the poll.) Then Gallup officials presented a paper at a conference calling Ford’s interpretation an “egregious error” that overlooked the difference between being aware of danger and actually believing smoking can cause a deadly illness.

“A review of historical Gallup surveys suggests that there was, in fact, a high degree of public doubt and confusion about the dangers of smoking in the 1950s and 60s. There may have been widespread awareness of the controversy over smoking, but public belief that smoking was linked to lung cancer trailed far behind this general awareness of the controversy,” the Gallup officials wrote in their conference paper.

Gallup points to its other surveys during the same period that found when people said smoking was “harmful,” they were thinking of less serious risks, like coughing, not cancer.

Reached for comment about the continued reliance on the 1954 poll, Gallup general counsel Steve O’Brien — who wrote the paper from 1998 — declined to wade back into the controversy.

“The fraternity that litigates these smoking cases are all aware of the history — or if they were doing their job right, they are,” O’Brien wrote in an email.

For his part, Vanderbilt’s Geer said in a 2014 deposition that he had never seen the letter to Ford or the Gallup warning, though both are publicly available as part of the Truth Tobacco Industry Documents. That’s an archival database, well known to public health researchers, of internal tobacco company documents maintained by the University of California-San Francisco.

Geer had never used it.

“I know of it broadly, but I’ve never spent any time on [the database],” Geer said.

Occasionally, the professors who work with the tobacco industry’s lawyers will be rejected as experts. In one case from late 2011, Geer was barred from testifying over questions about his methodology.

‘A Denial Of History’

Geer’s videotaped deposition in 2014 was part of Woodruff v. R.J. Reynolds Tobacco Company, et al., and he also submitted a report summarizing his research and findings. The plaintiff in that suit, a Florida widow, argued that her husband’s bladder cancer was caused by his smoking since he was a kid — as much as three packs a day. The case was ultimately settled for an undisclosed amount as part of a larger settlement.

The suit was one of thousands in Florida stemming from a former class-action verdict that was overturned but allowed many smokers to make individual claims using the same jury findings.

Tobacco companies win some and lose some. But the “common knowledge” defense has proven effective at limiting their liabilities, says Stanford’s Proctor. It’s difficult for a judge or jurors to cast their minds back to the 1950s, suspending all they know now about the dangers of smoking, thanks to 65 years of accumulated science.

But Proctor maintains that the 1950s were “another world.”

Proctor points out that most doctors used to be smokers. Some cigarettes were even branded as “doctor recommended.” Proctor calls it “a denial of history” to gloss over how broadly smoking was accepted, and how actively tobacco companies contributed to the confusion.

Proctor, along with Middle Tennessee State University historian Louis Kyriakoudes, is among a small number of professors who work on behalf of dying smokers or their surviving spouses.

Both have published extensively on smoking and list on their CVs work as an expert witness against tobacco companies.

“I’m proud of what I do,” Kyriakoudes said.

Tobacco companies deserve the chance to defend themselves, he says. But he accuses the professors they hire of donning “intellectual blinders” in order to claim everyone knew that one day smoking would kill them.

“People tell themselves that it’s the smoker’s fault for smoking, and why should somebody be suing a tobacco company anyway?” he said. “That plays into a very strong bias that blames the victim of addiction.”

Reputational Harm

Plaintiff attorneys will often question the industry’s defense experts about what they’ve disclosed to their academic employer about the outside work. And it’s clear from their answers that the academics do not widely advertise their work, even if they disclose to their employer that they consult with law firms, which write the actual checks.

But Allan Brandt, a medical historian and former dean of the Graduate School of Arts and Sciences at Harvard University, says institutions of higher education should be concerned about this vague disclosure — since the professor’s faculty appointment is often the credential used to qualify them as an expert in a lawsuit.

“I think it can harm the reputation of our own scholarship and our universities when this isn’t really put out in the open,” he said.

Many professors are called to be expert witnesses, in multiple types of cases. But Brandt says he hasn’t found any defense experts in these tobacco cases who would also be willing to defend their claims (about the awareness of smoking’s dangers) in an academic setting.

He says scholars can’t have it one way on campus and another in court.

“This is the ultimate public forum,” Brandt said. “The ideas that are presented there really ought to be subject to the kind of scrutiny and peer scrutiny that is so characteristic and a desirable value of universities.”

This story is part of a partnership that includes Nashville Public RadioNPR and Kaiser Health News.

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Courts Public Health States

Flavor Bans Multiply, But Menthol Continues to Divide

As states and communities rush to ban the sale of flavored tobacco products linked to vaping, Carol McGruder races from town to town, urging officials to include what she calls “the mother lode of all flavors”: menthol.

McGruder, co-chair of the African American Tobacco Control Leadership Council, has tried for years to warn lawmakers that menthol attracts new smokers, especially African Americans. Now that more officials are willing to listen, she wants them to prohibit menthol cigarettes and cigarillos, not just e-cigarette flavors, to reduce smoking among blacks.

McGruder and other tobacco control researchers are using the youth vaping epidemic — and the vaping-related illnesses sweeping the country — as an opportunity to take on menthol cigarettes, even though they are not related to the illnesses.

“We started to see that vaping is something that we could leverage in order to deal with this whole menthol issue,” said Valerie Yerger, an associate professor of health policy at the University of California-San Francisco.

Menthol is a substance found in mint plants that creates a cooling sensation and masks tobacco flavor in both e-cigarettes and cigarettes. Those properties make menthol more appealing to first-time smokers and vapers, even as they pose the same health threats as non-menthol products and may be harder to quit.

Nearly nine out of 10 African American smokers prefer mentholated cigarettes, according to the Centers for Disease Control and Prevention.

But even as tobacco control activists see opportunity, some African Americans, including smokers, fear discrimination. They predict that banning menthol will lead to a surge in illicit sales of cigarettes and result in additional policing in communities that already face tension with law enforcement.

Joseph Paul, director of political and civic affairs at City of Refuge Los Angeles, a church with about 17,000 members in Gardena, Calif., spoke at a board of supervisors meeting in September against a proposed flavor ban in Los Angeles County that was adopted a week later.

If officials truly wanted to end youth vaping, he later told California Healthline, the ordinance should have targeted only vape flavors and exempted adult smokers and their menthol cigarettes.

“Menthol cigarettes are very popular in the black community, my people smoke menthol cigarettes,” he said.

The Los Angeles County ban prohibits sales but not possession of flavored e-cigarette products, menthol cigarettes and chewing tobacco in the unincorporated area of the county, inhabited by about 1 million people. Shops have until April to clear their shelves of flavored tobacco products.

Paul warned that people will start selling menthol cigarettes illegally: “It’s supply and demand.” That will make the community more vulnerable to police harassment, he said.

In New York City, when officials proposed a ban on menthol cigarettes earlier this year, which has yet to be acted upon, the Rev. Al Sharpton made a similar argument against the measure: Banning menthol would lead to greater tensions with police in black communities.

“I think there is an Eric Garner concern here,” the civil right rights activist told The New York Times in July, referring to the well-known case of a 43-year old black man who died in a chokehold in 2014 while being arrested by New York City police on suspicion of selling single cigarettes.

The flavor bans that are currently sweeping the country have more to do with e-cigarettes than menthol cigarettes.

That’s because a mysterious vaping-related illness has sickened more than 2,050 people nationwide and led to at least 39 deaths. In California, at least 150 residents have fallen ill and at least three have died, according to the California Department of Public Health.

Most of those illnesses have been associated with vaping cannabis products, and yet politicians’ urge to adopt flavored tobacco bans continues.

In July 2016, Chicago became the first major U.S. city to ban menthol cigarette sales, but it limited the prohibition to within 500 feet of schools.

Of the more than 200 communities in the country that restrict or ban the sale of flavored tobacco, fewer than 60 include restrictions on menthol cigarettes, according to the Campaign for Tobacco-Free Kids.

Aspen, Colo., will ban all flavored nicotine products, including menthol cigarettes, effective Jan. 1. A few communities in Minnesota already have such bans in place. In California, close to 50 communities restrict or ban flavored tobacco products; of those, more than 30 include restrictions on menthol cigarettes. Notably, San Francisco banned menthol cigarettes along with all flavored tobacco products in 2018, before banning all vapes and e-cigarettes earlier this year.

At the national level, the Food and Drug Administration banned the sale of flavors in combustible cigarettes in 2009, but exempted menthol. Last November, the agency proposed a ban on menthol-flavored combustible cigarettes, calling their use among youths “especially troubling,” but it has not yet taken action.

Then the Trump administration said in September it would soon ban all flavored e-cigarette products, but it may now be backing away from banning mint and menthol.

Menthol, which was first added to cigarettes in the 1920s, is as old-school as it gets when it comes to flavored tobacco, yet it hasn’t prompted action in the way that vape flavors such as cotton candy and strawberry-melon have. That’s because vaping was embraced by a specific population: affluent white teens, Yerger said.

Big Tobacco aggressively pushed menthol cigarettes on black youths in the 1950s and 60s, and now some people consider Kools and Newports part of black culture, McGruder said.

McGruder and others point out that the tobacco industry has supported and funded civil rights groups and causes, forming relationships with prominent black leaders such as Sharpton. Big Tobacco acknowledged that it has contributed to Sharpton’s organization, the National Action Network, and similar groups.

McGruder said it’s difficult for the African American community to contradict respected male civil rights and religious leaders, so when they argue that menthol bans will lead to criminalization, the community listens.

But Bobby Sheffield, a pastor and vice president of the Riverside County Black Chamber of Commerce, said the criminalization argument is a scare tactic.

“We’re not trying to have anyone incarcerated because they have this product in their possession,” Sheffield said. His organization, which represents local businesses, started campaigning this year for menthol bans in California’s Inland Empire, including the cities of Riverside, San Bernardino and Perris.

Some smokers understand the need to keep tobacco out of the hands of children, but they don’t think it’s fair to include menthol cigarettes.

“It’s stupid. Now they’re trying to act like menthol cigarettes are the problem. These have been around for a long time,” said April Macklin of Sacramento, who smokes Benson & Hedges menthols. She smoked when she was younger, quit, and started again three years ago.

The city of Sacramento will ban the sale of flavored tobacco, including menthol cigarettes, effective Jan. 1.

Macklin, 53, said she might just quit because she won’t smoke anything other than menthol. But even with a ban in place, she doubts menthol cigarettes will be gone for good. “I’m sure people will figure something out,” she said.

This KHN story first published on California Healthline, a service of the California Health Care Foundation.

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