Politics & Government

Pressure in Kansas builds for new regulation with vaping-related illness on rise

Growing concern about the nationwide outbreak of severe lung injuries from vaping has energized efforts in Kansas to change what nicotine products are legal and who can buy them.

Two people have died from the mysterious vaping-related illness and 10 have been hospitalized. The Centers for Disease Control reports more than 800 cases in 46 states, including 12 confirmed deaths. Massachusetts, Rhode Island, Michigan and New York have moved to restrict or ban vaping products and devices.

In Kansas, the crisis is creating pressure for the biggest rewrite of the state’s tobacco and vaping laws in years, including increasing the age to purchase nicotine products from 18 to 21.

The focus on the purchasing age dovetails with CDC data showing that nearly 40 percent of the vaping illnesses reported nationwide have occurred in people under 21.

State action would bring Kansas in line with more than two dozen cities and counties that have already reset purchase age to 21 in recent years, including Topeka and Kansas City, Kan. A statewide law could be coming in 2020, lawmakers and advocates say.

“There’s a ton of momentum around it, not only because there have been a number of communities that have already passed local ordinances but because of everything that’s come out in the news recently about the epidemic problem of youth use,” said Jordan Feuerborn, the Kansas government relations director for the American Cancer Society Action Network.

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How we did this story

When Gov. Laura Kelly announced the second Kansas death related to vaping on Monday, her office said policy options were being examined but didn’t elaborate. Reporter Jonathan Shorman wanted know what options were available to Kelly.

He originally planned a story focused on what powers Kelly had to regulate vaping and how that compared to what governors in other states could do. He understood from research and sources that Kelly had less executive authority over public health than governors in some other states.

But as he talked to lawmakers, he heard a willingness to consider changes to vaping and tobacco laws that appeared new and driven in large part by the vaping epidemic. Ultimately, Shorman decided to focus the story on what lawmakers may do next year.

At the same time, reporter Michael Stavola talked to vapers in Wichita to hear how they were reacting to the illnesses and what they thought of possible changes to the law. Stavola interviewed several vapers at Puffs Wichita as well as the company’s CEO on Thursday afternoon.

In Kansas, efforts to combat vaping and tobacco use have received a boost from the state’s top health official, who has made high-profile comments in recent days on the dangers of e-cigarettes.

“People are dying from vaping and there’s hundreds of new cases each week of serious and fatal lung injuries from vaping,” Kansas Department of Health and Environment Secretary Dr. Lee Norman said in a video on the agency’s web site.

“We used to think that vaping was a fairly straight forward way for people to ween off nicotine, but with young people vaping now, and even older people doing it, there’s lots of illnesses and curiously we don’t know with 100% certainty what’s causing it.”

While health officials urge people to stop vaping, those who vape nicotine say they see it as a path to a better life that doesn’t involve cigarettes.

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Vapers say the problem is misinformation and where users shop. At Puffs Wichita one afternoon last week, Casey Neal said he switched from cigarettes to vaping three years ago and feels it’s easier to breathe since the change.

“The regular vape shops like this is not killing anyone. They’re vaping the black market on e-cartridges,” said Neal, 26, of those who have gotten sick. “Cigarettes have been killing people since they came out.”

The CDC said Thursday it does not know the specific cause of the illnesses. A specific device or substance has not been linked to all cases.

Nicotine bills will be filed

Leading Kansas lawmakers on health issues said they were open to looking at a variety of options — including raising the purchase age for tobacco products, raising the tax on such products and limiting flavors that are attractive to young vapers.

“There has been a fair amount of discussion. It’s kind of interesting as things seem to escalate on the national level as well as the local level, there becomes a bigger appetite to address the problem somehow, some way,” said Sen. Gene Suellentrop, a Wichita Republican who chairs the Senate Public Health and Welfare Committee.

Given that the session doesn’t begin for more than 100 days, he said it’s early for him to have strong enthusiasm for any one idea.

Rep. Monica Murnan, a Pittsburg Democrat and the ranking minority member of the House Health and Human Services Committee, said it’s important to look at public health issues holistically, from regulation to consumer education and personal choice.

“I get concerned sometimes when we believe that we can just slap one thing down and it’s going to fix a broader issue,” Murnan said.

Feuerborn said the American Cancer Society along with its partners — collectively known as the Tobacco Free Kansas Coalition — would offer a bill to raise the tobacco purchase age statewide this coming year.

“It does feel like there’s a ton of urgency,” Feuerborn said.

Vapers say switching helped

The counter of Puffs Wichita near Douglas and Hydraulic has a plastic container with a sticker that says “CANCER STICKS GO HERE!!!” The jar, about one-third filled on this day, says “we will donate $100.00 to American Cancer Society” once it’s full.

Michael Johnson, the president and CEO of Puffs, said he’s “militarizing” customers by telling them the truth about vaping — it’s not a healthy option but healthier than cigarettes (health officials are quick to point out that e-cigarettes haven’t been approved by the Food and Drug Administration as a way to quit traditional cigarettes).

Johnson said the recent targeting of the vaping industry stems from lobbying efforts by tobacco and pharmaceutical companies, who have the most to lose.

He doesn’t think upping the age to 21 for nicotine makes sense, explaining that the idea that someone could fight for their country but not vape seems ridiculous. Instead, he said, online sales should be better regulated or stopped, since that’s where he figures most minors buy vaping supplies.

As for banning flavors, Johnson said that wouldn’t affect business. Motivated by an additional tax on flavored nicotine, he already sells nicotine and flavors separately.

Johnson offers customers a syringe pen to mix the two themselves. The ratio of nicotine to mix with flavor is available on a menu.

The water-soluble flavoring also could be used for icing on cakes or scented candles, so a ban on flavors for vaping would not apply to it, he said.

Customers can buy it premixed at a higher price.

Health leader supports higher age

More than 25 local governments in Kansas have raised the purchase age for nicotine products to 21. Kansas City, Kan., became the first in 2015. The latest is Newton, where city commissioners voted Tuesday to raise the age beginning in 2020.

A little more than 27 percent of people in Kansas lived in an area where the purchasing age is 21 in March, according to the Preventing Tobacco Addiction Foundation. It’s unclear what percentage of 18- to 21-year-olds live in those areas.

Statewide legislation would vastly increase the number of people affected.

Norman, the KDHE secretary, voiced support for prohibiting the sale of nicotine products to people under 21 in testimony to a congressional committee on Wednesday. He called for increased scrutiny of vaping marketing and said anti-smoking laws need to be broadened to include e-cigarettes.

“Given that we don’t fully know the health effects of vaping solutions, or oftentimes even the contents, we must apply consumer protection fundamentals to protect our citizens, much as we would tainted meats or malfunctioning automobile airbags,” Norman told members of Congress.

Norman has gone further than Gov. Laura Kelly in raising the issue of the nicotine purchasing age. Asked Tuesday what options her administration is exploring — and whether she supports raising the age to 21 — she didn’t answer directly.

“That’s not been part of the conversation,” Kelly said of raising the age. She added that Norman has urged people to stop vaping until there’s a better understanding of its effects.

Kelly’s power limited

Governors in some states have taken aggressive executive action. Massachusetts’ governor ordered a temporary ban on the sale of vaping products. Michigan’s governor has prohibited some vaping flavors.

Kelly appears to have less power than those governors, however. The Kansas governor doesn’t have the authority to declare a public health emergency, according to a 2015 chart from The Network for Public Health Law.

“The governor’s ability to take executive action on banning vaping or e-cigarette products is somewhat more limited in Kansas than other states,” Lauren Fitzgerald, a Kelly spokeswoman, said in an email. “We are currently looking into all options, but plan to work with the legislature toward policy that would combat this epidemic.”

Feuerborn said unintended consequences can sometimes come with executive action. For instance, if flavored e-cigarettes are taken off the market but other flavored tobacco isn’t restricted, it can encourage people to switch products.

Sen. Ed Berger, a Hutchinson Republican, said he would prefer changes come from the Legislature.

“I think the results are better and you have better buy in,” he said.

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