Public Hearing: To Consider Including Electronic Cigarettes in the Existing Clean Indoor Air Act and Regulating Liquid Nicotine

1 BEFORE THE NEW YORK STATE SENATE

STANDING COMMITTEE ON HEALTH 2 ------------------------------------------------------ 3 PUBLIC HEARING: 4 TO CONSIDER INCLUDING

ELECTRONIC CIGARETTES IN THE EXISTING 5 CLEAN INDOOR AIR ACT AND REGULATING LIQUID NICOTINE 6 ------------------------------------------------------ 7 Legislative Office Building

Van Buren Hearing Room A - 2nd Floor 8 172 State Street

Albany, New York 12247 9

May 12, 2014 10 11:00 a.m. to 1:00 p.m. 11

PRESIDING:12

Senator Kemp Hannon 13 Chairman 14 15 PRESENT: 16 Senator Martin Golden 17 Senator Ruth Hassell-Thompson 18 Senator Brad Hoylman 19 Senator Gustavo Rivera (RM) 20 Senator Diane J. Savino 21 22 23 24 25 1

SPEAKERS:PAGE QUESTIONS 2

Harlan Juster, Ph.D. 3 16 3 Director, Bureau of Tobacco Control

New York State Department of Health 4

Lawrence Eisenstein, M.D., FACP 27 35 5 President, NYS Association of

County Health Officials 6 Commissioner of Health, Nassau County 7 Michael Burgess 39

Director, NY Government Relations 8 American Cancer Society

Cancer Action Network, Inc. 9

Julianne Hart 39 10 Director, NYS Government Relations

American Heart Assoc./American Stroke 11

Andrew Hyland, Ph.D. 53 70 12 Chair, Department of Health Behavior,

Division of Cancer Prevention & 13 Population Sciences

Roswell Park Cancer Institute 14

Michael G. Holland, M.D. 53 70 15 Medical Toxicologist

Upstate New York Poison Control 16

Scott Wexler 73 78 17 Executive Director 88

Empire State Restaurant and 18 Tavern Association 19 James Calvin 83 88

President 20 New York Association of Convenience Stores 21 ---oOo--- 22 23 24 25 1 SENATOR HANNON: Good morning. 2 This is a hearing of the Senate Health 3 Committee on e-cigarettes and e-liquids. 4 I'm joined with Gustavo Rivera, the ranking 5 Democrat on the Committee, and by Diane Savino, a 6 member of the Committee. 7 We will have testimony by several people, and 8 we've also received a large number of comments and 9 written statements, especially from people who sell 10 the vapor cigarettes. 11 All of those will be made part of the record, 12 and that will be held open, because we need to 13 consider all aspects of this legislation. 14 We actually reported, one of the bills about 15 the Clean Indoor Act last week from 16 Health Committee, but as Senator Rivera pointed out, 17 a technical problem with it, so that will be being 18 amended and we'll move forward. 19 Our first person to testify is 20 Dr. Harlan Juster, who's director of the Bureau of 21 Tobacco Control from the Department of Health in the 22 state, and he's here to give us a general overview 23 of cigarettes and other things. 24 He's not here, because that's not part of the 25 way this Administration works, to testify on 1 specific bills, so, I just have to caution my fellow 2 Senators that you just can't do it. 3 But, he brings tremendous background and 4 expertise to this area. It's obviously a very 5 extensive area for the state. 6 And, Dr. Juster, we'll let you start. 7 HARLAN JUSTER, Ph.D.: Okay, thank you very 8 much. 9 Good morning, Chairman Hannon and members of 10 the Committee. 11 My bureau administers the statewide 12 tobacco-control program as part of the 13 New York State Department of Health. 14 And thank you for this opportunity to present 15 today regarding the possible inclusion of 16 electric cigarettes in the existing Clean Indoor Air 17 Act and regulation of liquid nicotine. 18 The New York State Department of Health's 19 tobacco-control program has been a national leader 20 in promoting tobacco-control policy, health-systems 21 change, and developing innovative approaches to 22 address the negative consequences of tobacco use. 23 The program is evidence-based. It follows 24 guidance on best practices from federal Centers for 25 Disease Control, and relies on reports from the 1 U.S. Surgeon General, the Institute of Medicine, the 2 National Cancer Institute, and the peer-reviewed 3 scientific literature. 4 SENATOR HANNON: Could you pull your mics 5 forward to you? 6 HARLAN JUSTER, Ph.D.: Closer? 7 SENATOR HANNON: Maybe the audience can -- 8 this -- under the new reconstructed hearing rooms, 9 we have difficulty hearing up here because the 10 speakers are in there. 11 HARLAN JUSTER, Ph.D.: I can't hear you very 12 well, either; so, we're even. 13 How's this? 14 SENATOR HANNON: Great. 15 HARLAN JUSTER, Ph.D.: The three pillars of 16 tobacco control are the high cost of tobacco, 17 comprehensive clean indoor air laws that are 18 strongly enforced, and an evidence-based, 19 population-oriented tobacco-control program. 20 This approach is working in New York. 21 From 2001 to 2012, the adult smoking rate in 22 New York declined by almost one-third, from a 23 prevalence of 23 percent, to just 16 percent. 24 Prevention activities have produced even more 25 impressive results among youth. 1 In 2000, 27 percent of high school-age youth 2 reported smoking in the last 30 days. 3 In 2012, just 12 percent of high school-age 4 youth smoked a cigarette. 5 That's a 56 percent decline. 6 Among middle-school ages, the decline was 7 70 percent. 8 Our surveillance data indicates that the 9 declines in New York are occurring at a rate that is 10 faster than in the rest of the nation. 11 The declines in youth initiation of cigarette 12 use have had a positive impact on the trajectory of 13 adult smoking; that is, youth who did not initiate 14 smoking in the first decade of this century are now 15 non-smoking young adults. 16 And in 2010, for the first time since we've 17 been monitoring these data, the 18-to-24-year-old 18 young-adult age group is no longer the age group 19 with the highest smoking rate. 20 This positive trend, attributed to nonsmokers 21 as they age, will continue as long as the tobacco 22 initiation rate among youth continues to decline. 23 There is great concern in the 24 tobacco-controlled community that new products, like 25 those being discussed today, could undermine and 1 potentially reverse the substantial gains that have 2 been made in New York in reducing tobacco use. 3 In order to effectively evaluate or regulate 4 electronic nicotine-delivery systems, which is how 5 we refer to them, or, "ENDS," E-N-D-S, it is 6 important to use a comprehensive definition that 7 covers all products. 8 Electric cigarettes, or e-cigarettes, are 9 just one of a number of similar personal-use 10 devices. 11 And you can see them up on the slides that 12 I have in front of you. 13 There's also e-hookah, vaping pens, 14 e-cigars, hookah pens, and this list will 15 undoubtedly grow. 16 And here's a few pictures of some of the 17 items. 18 (Slide show involved.) 19 HARLAN JUSTER, Ph.D.: That's a vaping pen. 20 That's a rechargeable device. That looks a 21 mini mag flashlight to me, but it's one of these 22 units that's a personal vaporizer. 23 They come in many forms, and to be sure, 24 surely more to come. 25 That's an electronic hookah. 1 They all do the same thing. 2 All of these devices are designed to heat a 3 liquid containing nicotine so it is hot enough to 4 create an emission, or vapor, which is then inhaled 5 by the user. 6 This inhaled emission is absorbed through the 7 lungs and other internal surfaces into the 8 bloodstream where nicotine travels to the brain and 9 binds with specific neurotransmitter sites. 10 No matter what we call them, all of these 11 devices are designed for and capable of delivering 12 nicotine which is a highly addictive component in 13 all tobacco products. 14 Many of the liquids used in these devices 15 contain flavorings designed to appeal to youth and 16 young adults. 17 There are flavors called "French vanilla," 18 "cherry crush," "watermelon splash," "bubble gum," 19 "gummy bear," "cola," "strawberry," "cherry," and 20 "cookies-and-cream milkshake." 21 Clearly, these flavors are meant to appeal to 22 a younger population. 23 And it is important to note that flavors like 24 these are prohibited by federal law from being used 25 in traditional cigarettes, because federal law 1 recognizes that the purpose of these flavorings is 2 to addict children to nicotine and create new 3 generations of tobacco users. 4 And here's some of what the containers look 5 like. 6 And there's "Rainbow Sherbet." 7 Now, these devices are different from 8 combusted or burned tobacco cigarettes. 9 There is generally no burning, no tobacco 10 leaf, and they may have fewer or different toxins 11 compared with tobacco cigarettes. 12 However, recent reports from the Food and 13 Drug Administration, and elsewhere, have found 14 contaminants and tobacco-specific compounds believed 15 to be among the more carcinogenic components of 16 tobacco smoke. 17 And another recent study showed that when 18 used in a particular way, levels of formaldehyde in 19 the emissions can reach levels equal to that of 20 combusted or burned cigarettes. 21 So even if there are fewer toxins than 22 cigarettes, that does not mean these are safer for 23 the individual or for the population as a whole. 24 Much of the analysis depends on how the 25 products are used by the public, and researchers and 1 public-health officials are really just beginning to 2 learn about attributes of products, consumer 3 behavior, patterns and methods of use, intended and 4 unintended consequences. 5 Today, the safety of these products is 6 unknown and their value as a cessation tool is 7 entirely unproven. 8 Research is scant, but what little has been 9 conducted is concerning. 10 We know that a great deal of marketing of 11 these products appeals to youth, and that youth are 12 responding to these marketing techniques. 13 The vast majority of teens and young adults 14 are aware of these products and are exposed to the 15 advertising. 16 As a result, youth use of these products has 17 dramatically increased, and we know that most youth 18 who use these products are also smoking cigarettes, 19 a combination that can lead to long-term nicotine 20 addiction and cigarette use. 21 For adults, we know that there have been no 22 spikes in cessation attempts, quitting attempts, 23 among adult cigarette smokers concomitant with the 24 spike in ENDS use. 25 We are certain that more research is needed, 1 but, to date, no study has shown that quitting is 2 enhanced by ENDS use -- ENDS use of these products, 3 and their use may make it even harder to quit 4 cigarette use. 5 Determining safety and assessing health 6 impacts requires much more research than currently 7 exists, and multiple issues must be considered. 8 The scientific community is only at the 9 beginning stages of determining the safety and 10 health impacts of these products. 11 As a public-health professional, I'm 12 concerned that nicotine-delivery devices will result 13 in one or more of the following negative health 14 outcomes: 15 Youth using ENDS, these nicotine-delivery 16 devices, will become addicted to nicotine, and many 17 will transition to the use of tobacco cigarettes. 18 Tobacco cigarettes deliver nicotine more 19 efficiently than nicotine-delivery devices, and the 20 transition seems to be a logical extension of ENDS 21 use. 22 Two, nicotine devices will re-glamorize the 23 active smoking. This is a battle fought by public 24 health for a long time, and continues to be a key 25 strategy to reducing initiating youth initiation. 1 Three, nicotine devices will be used to 2 maintain and strengthen nicotine addiction in 3 cigarette smokers, who then continue to also smoke 4 tobacco cigarettes, known as "dual use." 5 And, four, former smokers will return to 6 nicotine use and addiction through the use of these 7 devices, and then relapse to tobacco use. 8 Now, advocates for the use of these products 9 as cessation devices argue that because there are 10 likely fewer toxins in the emissions compared with 11 combusted cigarettes, or burned cigarettes, that 12 these products must be safe to use. 13 They're making a harm-reduction argument, but 14 that argument is incomplete and flawed. 15 Harm reduction works when there is a clear 16 benefit to the user that outweighs the costs to the 17 rest of society. 18 We already have harm-reduction products in 19 tobacco control. 20 The FDA has approved five nicotine-delivery 21 devices that have been shown in extensive research 22 to be safe and effective. 23 These are the nicotine-replacement therapies, 24 and include the patch, gum, lozenge, inhaler, and 25 nasal spray. 1 There are also two non-nicotine -- 2 non-nicotine prescription medications, bupropion, 3 and varenicline, also shown to be safe and effective 4 at increasing smoking-cessation rates. They reduce 5 the harm of nicotine addiction by helping users of 6 combusted cigarettes to quit, but they do not 7 attract the new users who find these products 8 appealing. This is successful harm reduction. 9 While we await the availability of the 10 results of additional research, the department will 11 consider a variety of policy solutions, but recent 12 events in which reports to poison control centers 13 that young children have gained access to and drank 14 the liquid nicotine solutions indicate that 15 child-proof packaging must be one consideration. 16 On April 25th of this year, the FDA proposed 17 a new rule, known as the "deeming rule," to extend 18 its authority to include electronic 19 nicotine-delivery devices. 20 Proposed regulations include prohibiting the 21 sale and distribution of free samples to minors and 22 requiring the disclosure of ingredients. 23 However, the proposed regulations do not 24 address many issues of concern to the 25 tobacco-control community, including providing a 1 legal definition for e-cigarettes, prohibiting 2 characterizing flavors, prohibiting Internet sales, 3 prohibiting brand-name sponsorship, or marketing and 4 advertising restrictions. 5 The FDA's proposed timeline is already 6 lengthy. And just last week, the tobacco industry 7 requested that the formal comment period be doubled, 8 from 75 days, to 150 days. 9 This process could take years. 10 In the interim, these products are being sold 11 widely in shopping malls, in stores that are 12 otherwise unlicensed to sell tobacco products, and 13 on the Internet. Quality control is highly 14 variable, and the devices are being used by our 15 youth in creative but dangerous ways. 16 The companies are using all the old-time 17 marketing methods to sell these products to youth. 18 Dr. Thomas Frieden, director of the CDC, 19 recently said that, quote, Tobacco is really the 20 number one enemy of health in this country and 21 around the world, unquote. 22 Tobacco use causes 30 percent of all cancers, 23 including 85 percent of lung cancers. 24 Cigarette smokers are two to four times more 25 likely to develop coronary heart disease than 1 nonsmokers, and the U.S. Surgeon General has 2 concluded that tobacco use negatively affects every 3 organ system in the human body. 4 The single most effective intervention that 5 can improve the health of more people in New York 6 and around the world would be to reduce or eliminate 7 tobacco use. 8 In spite of the progress we've made, 9 24,000 New Yorkers still die each year from tobacco 10 use, and hundreds of thousands suffer from serious 11 illness. 12 The financial cost to the State is enormous. 13 We have the tools to end the tobacco problem 14 in New York State for the next generation, but the 15 unregulated market that is electronic 16 nicotine-delivery systems threatens the gains that 17 have been made in New York, and must not be allowed 18 to undermine the important progress made in 19 denormalizing tobacco use, especially among youth 20 and young adults. 21 We must continue to conduct well-designed 22 studies to better understand the impact of these 23 products on public health, but, the paucity of 24 research cannot be used as an excuse to refrain from 25 action. 1 Thank you for inviting me to speak with you 2 today, and I'd be happy to respond to any questions 3 you may have. 4 SENATOR HANNON: A very powerful set of 5 conclusions, and any number of different aspects of 6 this. 7 I was intrigued. 8 Senator Savino had to go do an interview, and 9 will be back. A media interview. 10 But I was intrigued by even when smoking 11 starts in the cohort of the population, because she 12 has a bill that would raise the age for everybody to 13 21. 14 And I hadn't ever focused on that aspect 15 before. And I see -- and you cited it, and it's 16 supported by federal -- 17 HARLAN JUSTER, Ph.D.: It's a little hard for 18 me to hear you, but -- 19 SENATOR HANNON: It's supported by a federal 20 study. 21 HARLAN JUSTER, Ph.D.: Yeah, 80 percent of 22 adult smokers start before the age of 18. 23 That's a key demographic for the tobacco 24 industry to target, because they are the future 25 smokers that are going to replace those who quit and 1 those who die. 2 SENATOR HANNON: How -- one of the things you 3 said during your testimony was the -- watching the 4 cessation rates. 5 How was that measured? 6 HARLAN JUSTER, Ph.D.: We conduct 7 surveillance of a whole host of indicators related 8 to tobacco use, and one of them is -- are the 9 cessation rates across the state. 10 We have surveys that we do by telephone, we 11 do them by mail, we do -- we use cell phones now to 12 get to the demographics that are hard to reach. And 13 we've been doing this since 2003. 14 We actually have data on a similar survey 15 back to 1985. 16 So we've been watching the cessation rates 17 for a long time. 18 Through the '80s, there was a significant 19 drop. 20 Through the '90s, things seemed to level off. 21 And through the 2000s, again, a big drop in 22 prevalence of smoking and increase in cessation 23 rates. 24 So we asked people, if they're smokers, have 25 they tried to quit in the past 12 months? Do they 1 intend to try and quit in the next 3 months? 2 We ask all these questions. 3 So for the last three or four years, those 4 numbers have been, essentially, flat. 5 In 2009, I believe 62 percent of smokers -- 6 adult smokers said they tried to quit for at least 7 one day or more in the past year. 8 In 2012, it was 64 percent. 9 Essentially, no difference. 10 So, we know that the ENDS devices are being 11 used at a much higher rate, but the quit rate for 12 smoking isn't changing. 13 So what we're seeing is, I think, the 14 beginnings of that dual use. 15 We need to understand it better, but, there's 16 no indication that quit rates are going up. 17 SENATOR HANNON: And questions of addiction, 18 how -- one of the studies, like, that show you how 19 long it takes for someone to become addicted to 20 smoking tobacco; how long -- you know, how difficult 21 it is to get out of smoking; and, what methods of 22 cessation in terms of withdrawal? 23 HARLAN JUSTER, Ph.D.: Nicotine addiction is 24 one of the most difficult addictions there is. It's 25 probably more difficult to quit that than to quit 1 alcohol addiction. 2 Youth who have been smoking for just a month 3 or two begin to show the signs of addiction -- you 4 know, the early signs of addiction. You know, 5 smoking earlier and earlier, first thing in the 6 morning, difficulty quitting, feelings of craving, 7 and things like that. 8 So, that's the nicotine. Nicotine is 9 extraordinarily addictive. 10 And if you look at the rates of relapse 11 following cessation attempts, it's exactly the same 12 relapse rate that you see with all other kinds of 13 addiction: heroin addiction, alcohol addiction. 14 When you look at the relapse rates, 15 something, like, 50 percent relapse within 30 days, 16 and I believe 80 or 90 percent within 6 months. 17 And it's the same curve for every one of 18 those addictions. 19 And that's why there is the development of 20 the FDA nicotine -- approved nicotine-replacement 21 therapies, like the patches and the gums, that 22 provide nicotine to a person, which is a safer 23 alternative when provided in approved form, than 24 getting your nicotine through tobacco smoke, for 25 instance, which has all the other chemicals 1 associated with it. 2 The problem with these devices is, they're 3 not regulated, they're not approved, you don't know 4 what people are getting. You don't know how much 5 nicotine you're getting from them. 6 People use them all different ways. 7 Just saw a study in which youth are actually 8 disassembling the devices and pouring the liquid 9 nicotine directly onto the heater within the device, 10 which is not how it's supposed to be used, but it 11 produces a much higher level of nicotine emission 12 that they can inhale. But in the same time, they're 13 also getting formaldehyde and some other things that 14 are produced at high temperature, that aren't 15 produced if they use in the expected way. 16 Nicotine addiction is an extremely difficult 17 addiction to break, but people do it. And, 18 actually, most of them still do it without help, 19 without assistance. 20 It's a bit of a conundrum there to get people 21 to try these products. 22 They seem to want to quit on their own, is a 23 popular thing that we hear from people who are 24 trying to quit. They don't want help. 25 But help will increase the likelihood of them 1 quitting with these devices. 2 SENATOR HANNON: Thank you. 3 Senator Rivera. 4 SENATOR RIVERA: Thank you, Dr. Juster. 5 First of all, thank you, obviously, for being 6 here. 7 This is a brief, but I think very thorough 8 kind of outline of what are the concerns that we 9 have. 10 And I want you to -- and I wanted for you to 11 talk a little bit more about, in particular, the way 12 that these products are being marketed. 13 I think it was -- I was -- kind of, as I was 14 hearing, I was reading along, and I kind of jumped 15 ahead a little bit, and there was some sections that 16 really outlined the fact that, for the most part, 17 they are -- these companies are borrowing the 18 advertising strategies that were used by tobacco 19 companies before they were regulated or prohibited 20 from doing so. 21 And that if you take that model and you just 22 put it on to the -- on to what's happening now, that 23 we're just looking at exactly the same marketing 24 type of strategies. 25 So, I wanted you to talk a little bit more 1 about that. 2 HARLAN JUSTER, Ph.D.: Sure, sure. 3 The marketing of tobacco in the past was an 4 extraordinarily successful marketing technique. 5 It set the tone for the use of these 6 products. 7 It made them look glamorous to the public. 8 It provided status symbols. 9 Made people think they were going to be 10 healthier using these products. 11 They were amazingly successful. 12 And the strategies include things like, 13 endorsement from celebrities. 14 Long time ago, it used to be doctors doing 15 the endorsements. 16 They got rid of that, but, still, celebrity 17 endorsement is important. 18 The flavorings that make it easier -- well, 19 they taste better, but also makes it easier to use 20 the products, are very popular. 21 You saw some of the flavorings I showed you. 22 Clearly, those are meant to appeal to youth and 23 young people. 24 See, celebrity endorsements and flavorings 25 and -- and, I guess, as I said, it's the old 1 playbook all over again. 2 There's -- the themes of the ads are, I think 3 I said in my -- in the longer comments, you know, 4 rugged individuality, and also rebelliousness. 5 And these are the themes that young people, 6 especially adolescents, take to. 7 They are attracted very much by being -- by 8 wanting to appear more individual -- more of an 9 individual, and rugged, and tough, and sort of 10 rebellious, is a key to, you know, grabbing the 11 attention of young people. 12 And they do this very well. 13 SENATOR RIVERA: Okay, and as it relates to 14 cessation, there's two points that you mentioned, 15 that I want to underline, as well. 16 One of them is that there is -- in the 17 evidence that you've seen so far, even though the 18 use of these types of devices has spiked in the 19 population of smokers, you don't see, necessarily, 20 a -- an uptick in the type of -- in the amount of 21 people that want to actually quit. 22 HARLAN JUSTER, Ph.D.: Correct. 23 SENATOR RIVERA: So, therefore, that doesn't 24 necessarily -- it's not -- you know, it's not a 25 double-blind study, et cetera, but there's, 1 obviously, not -- 2 HARLAN JUSTER, Ph.D.: There was one. 3 SENATOR RIVERA: There was one? 4 HARLAN JUSTER, Ph.D.: One double-blind -- 5 or, I'm sorry, not double-blind. 6 But there was a random controlled trial. 7 People knew what they were getting. 8 One random controlled trial -- it's in the 9 longer comments -- that compared an e-cigarette with 10 nicotine to a patch -- nicotine patch, to nothing, 11 I think. 12 And the quit rates, quit rates are not high 13 for any of those products. 14 The quit rate for the patch was about 15 5.8 percent, and the quit rate for the e-cigarette 16 was 6.8 percent; slightly higher, but a 17 nonsignificant difference, as if they're -- the quit 18 rates were identical. 19 And, of course, it doesn't take into account 20 the quality-control issues and the marketing to 21 youth, and all that. 22 And, again, the harm-reduction argument says: 23 Will it help the individual? 24 Will it help the population as a whole? 25 And you have to balance both of those. 1 People who tend to look at these as cessation 2 devices aren't looking at the population as a whole. 3 They're looking at the individual user only 4 and saying this might help this user. 5 Well, but not if it gets 10 new kids to 6 smoke. 7 That's not worth it. That's not a 8 calculation I'm willing to make. 9 SENATOR RIVERA: And, ultimately, the -- as 10 your conclusion here, it seems to be that you're 11 saying, even though there might not be enough 12 research yet to be able to determine whether this -- 13 you know, it might be a good cessation device, it 14 might be good for that purpose, to make the argument 15 that there's not enough evidence yet that it is or 16 it isn't; therefore, we shouldn't regulate it, is 17 not a smart public-safety or public-health decision. 18 HARLAN JUSTER, Ph.D.: Not given the history 19 of this industry, which, as we know, was convicted 20 of racketeering and marketing directly to kids. 21 Judge Kessler said they're marketing to kids, 22 even when they weren't supposed to, and they were 23 convicted for that. 24 This is the same industry that did that -- 25 did those things. 1 And those -- the three big companies, you 2 know, Lorillard, R.J. Reynolds, and Altria, are now 3 in the e-cigarette business. All three of them have 4 a product. 5 Blu; Vuse, V-U-S-E, whatever that is; and 6 MarkTen, are now e-cigarette products. And when 7 they get in the business, then you start to worry. 8 We worried before. 9 SENATOR HANNON: I have a -- this is what 10 I got yesterday when I was buying a windshield wiper 11 at Pep Boys. Right at the counter was, M-I-S-T-I-C; 12 hence Mistic. 13 SENATOR RIVERA: It sounds -- it sounds 14 awesome. 15 HARLAN JUSTER, Ph.D.: It sounds awesome, and 16 it looks awesome. 17 And if you look at the products, they're very 18 cool. 19 I think some of them come with USB connectors 20 to recharge them in your computer, because they're 21 rechargeable units. 22 These are very cool, interesting products 23 that any of us would be interested in, as long -- if 24 you didn't know what they were. 25 SENATOR HANNON: Yeah. 1 Well, thank you very much. I deeply 2 appreciate it. 3 And I think there's a very solid foundation 4 you've helped lay for this whole thing. 5 HARLAN JUSTER, Ph.D.: Great. 6 Thank you. 7 SENATOR RIVERA: Thank you, Doctor. 8 SENATOR HANNON: I'd like to ask 9 Dr. Lawrence Eisenstein to join us. 10 Dr. Eisenstein is not only the health 11 commissioner of the county of Nassau, protecting my 12 health, he is also the president of the New York 13 State Association of County Health Officials, 14 NYSACHO, representing the whole state. 15 Thanks for joining us this morning. 16 DR. LAWRENCE EISENSTEIN: Thank you, 17 Senator Hannon. It's my pleasure to be here. 18 Good morning. 19 My name is Dr. Lawrence Eisenstein. I'm the 20 commissioner of health for Nassau County, and 21 I currently serve as the president of the 22 New York State Association of County Health 23 Officials, also known as "NYSACHO." 24 NYSACHO represents all 58 county health 25 officials, and they send their regards. 1 I want to thank the Senate Standing 2 Committee, and send greetings from all 58 county 3 health officials, Senator Rivera. 4 And, of course, a special thanks to Committee 5 Chairman Senator Kemp Hannon who represents my 6 county. He's been a great partner in health care. 7 Our association had a monthly meeting last 8 week and we discussed the pending legislation. 9 NYSACHO loudly applauds and supports the 10 efforts of regulating electronic tobacco-delivery 11 devices and related components, also known as 12 "e-cigarettes." 13 And for the purpose of this testimony, we'll 14 call them "e-cigarettes." 15 I do want to comment that a lot of what 16 you're going to hear from me was just said in what 17 I also thought was a very thorough, excellent 18 introduction. 19 And I'm very appreciative of Dr. Juster's 20 presentation, because when you hear the same theme 21 over again, independently reached upon by different 22 health officials, it really tends to lend 23 credibility. 24 And I -- it's not -- it was -- at first I was 25 thinking, Hey, this guy's stealing my thunder. 1 But, in fact, it's really important to hear 2 the same themes over and over again, and that we're 3 all looking at the same data and evidence. 4 As public-health officials, we're always 5 searching for new tools to help smokers to quit. 6 E-cigarettes are marketed as a 7 smoking-cessation tool or a safe alternative to 8 traditional tobacco products. 9 But, in fact, we have no solid evidence that 10 e-cigarettes really help people quit smoking. 11 In fact, there are new studies, numerous new 12 studies, suggesting that they serve as a gateway to, 13 especially our youth, smoking actual cigarettes 14 later on, and, there remains questions about their 15 safety. 16 We know that the nicotine in e-cigarettes is 17 addictive. 18 We do not know for certain what else is in 19 the vapor they produce. 20 Very often we hear it marketed as 21 "water vapor," but the fact is, it's hard to believe 22 it's just water vapor when we can all clearly smell 23 some kind of chemical odor when we're around people 24 using e-cigarettes. 25 Water vapor should not have a chemical-odor 1 smell. We want to know exactly, what is that? 2 What chemicals are coming out of the vapor of 3 e-cigarettes into the general air that everybody 4 else has to breathe? 5 Till we have clear evidence that e-cigarettes 6 are both safe and effective for smoking cessation, 7 NYSACHO believes and supports that our legislators 8 regulate their manufacture and quality control. 9 Unless we can assure their safety, 10 e-cigarette use and exposure should be limited, and 11 we're very excited to support the pending 12 legislation. 13 While we await federal regulation of this 14 industry and these devices, NYSACHO supports our 15 state's leaders, in particular, in taking action to 16 protect all of the residents of New York State. 17 We find the statewide legislation to be 18 vital. 19 We commend those localities that have already 20 taken action or are considering it, but, similar to 21 the New York State Clean Indoor Air Act, state 22 legislation would standardize safety measures to the 23 benefit of all New Yorkers. 24 The current package of proposed legislation 25 before your Committee is a crucial first step. 1 There's much we still need to learn about 2 e-cigarettes, and there are many studies ongoing, 3 but what we already know is troubling. 4 We know that they are aggressively marketed 5 to children and young adults, a theme you heard 6 earlier, but I think it's really important to 7 reemphasize. 8 A CDC study published, tells us that the rate 9 of e-cigarette use doubled, "doubled," for both 10 middle and high school students in just one year, 11 between 2011 and 2012. 12 Make no mistake, this is the result of direct 13 marketing to our youth. 14 An example of marketing to minors is the use 15 of flavors in e-cigarettes. 16 While the federal government has banned 17 flavoring of traditional cigarettes, e-cigarettes 18 are sold in cherry, vanilla, cola, bubble gum, and 19 chocolate flavors. 20 Ads for e-cigarettes make them look 21 glamorous, sexy, and rebellious, and as was just 22 stated, they look cool. 23 A recent University of California study 24 published in the Journal of the American Medical 25 Association Pediatrics version, just this month, 1 found that e-cigarettes can be concluded to be 2 gateways; that is, they encourage teenagers who use 3 e-cigarettes to progress to smoking traditional 4 cigarettes. 5 The data clearly showed that teens who use 6 e-cigarettes have a much higher rate of using 7 cigarettes -- actual cigarettes later on. 8 This was from, again, the Journal of the 9 American Medical Association Pediatrics Edition. 10 New York State's 2012 ban on the sale 11 e-cigarettes to minors has proven difficult to 12 enforce. 13 Unlike traditional tobacco sellers, vendors 14 are not required to register with the Department of 15 Tax and Finance, making it difficult to establish 16 where e-cigarette products are sold. 17 For this reason, county health officials 18 support Senate Bill 7139. It requires e-cigarette 19 retailers who are not registered with State Tax and 20 Finance to register with the State Health 21 Department. 22 Major public-health risk with e-cigarette 23 liquid is nicotine poisoning. One tablespoon of 24 this poisoning can be lethal to adults, and just a 25 small teaspoon is lethal to children. 1 Right now, these e-liquids can be sold in 2 large quantities -- barrels, gallons, whatever large 3 quantity you want -- with no protective packaging or 4 warnings. 5 Nicotine-poisoning calls, to further 6 emphasize this point, to poison-control centers 7 nationwide have risen, from 1 per month in 2010, to 8 215 calls per month by February 2014. 9 More than half of these calls related to 10 nicotine poisoning from the liquids in children 11 under the age of 5. 12 What an absolutely unacceptable risk to our 13 children's health. 14 County health officials strongly support 15 Senate Bill 7027, which requires labeling and 16 warnings to make adults aware that this these 17 liquids are hazardous, and it prohibits the sale of 18 liquid nicotine to minors. 19 The financial burden of tobacco use for 20 New York State is estimated at about $8.2 billion 21 annually. This includes more than $3 billion every 22 year in Medicaid costs for tobacco-related 23 illnesses. 24 We need to keep making progress to rein in 25 these costs, not reverse it. 1 But a recent study by the CDC states that the 2 number of Americans who have ever used e-cigarettes 3 quadrupled between 2009 and 2010. 4 And as discussed earlier, as these are a 5 gateway to actual cigarette use, this could impact 6 the trend of decreasing the overall number of 7 smokers we have in our country. 8 County health officials want to see the 9 Clean Indoor Air Act apply to e-cigarettes. 10 First of all, e-cigarettes may lead to health 11 problems, particularly due to the inhalation of 12 toxic chemicals. 13 Nicotine itself represents health risks. 14 A 2009 FDA study found that some e-cigarette 15 liquids contained toxins and carcinogens, including 16 diethylene glycol. This chemical is found in 17 antifreeze. 18 Such toxins make exposures to the vapor risky 19 for both smokers and nonsmokers. 20 Secondly, the use of e-cigarettes makes it 21 difficult for local health departments to enforce 22 existing smoke-free-air laws. It can be tougher and 23 forces to distinguish between the e-cigarettes and 24 traditional cigarettes. 25 The industry promotes the use of e-cigarettes 1 where other tobacco products are prohibited. 2 We believe that by encouraging use of 3 e-cigarettes in public places, the industry seeks to 4 reestablish smoking as an acceptable, appealing 5 behavior. 6 This can undercut years of successful efforts 7 to reduce tobacco use. It can wipe out the progress 8 we've made in reducing tobacco-related illnesses and 9 all of their associated human and financial costs. 10 We cannot allow this to happen. 11 In closing, we should thank Senator Hannon, 12 Senator Rivera, the Standing Senate Committee on 13 Health, and the Assembly sponsors of legislation to 14 control e-cigarettes. 15 NYSACHO loudly appreciates your ongoing 16 efforts to reduce nicotine poisoning and tobacco 17 use, and to ensure cleaner, safer air for all 18 New Yorkers. 19 Thank you for allowing me to testify this 20 morning. 21 HARLAN JUSTER, Ph.D.: Well, thank you, 22 Dr. Eisenstein. 23 That -- you -- some, again, powerful facts 24 that are there, and the correlations, especially as 25 to where we may be going with this. 1 I should know the answer to this question. 2 Is it the health departments that do the age 3 verification for the sale, or is that the 4 Consumer Affairs Department? 5 DR. LAWRENCE EISENSTEIN: Yes. 6 SENATOR HANNON: You're "yes" -- 7 DR. LAWRENCE EISENSTEIN: Yes -- sorry. 8 We have the tobacco-control program which 9 does that. 10 SENATOR HANNON: So you would be -- because 11 one of the bills that we have before us, is to have 12 registration when any sale is done, because it's not 13 necessarily a tobacco product. 14 So that -- it's really -- 15 DR. LAWRENCE EISENSTEIN: Yes, and that's one 16 of our challenges. 17 We currently do a great job with our tobacco 18 stings for age verification, but, all of the vendors 19 of tobacco are registered, so we know, and can plan 20 how many visits we need to do, how many stings we 21 need to do. 22 In our county, it's one of the most effective 23 programs there is. We're up to, approximately, 24 97 percent compliance, which is much higher than 25 when the program began. 1 And -- but as you said, we don't go into 2 Pep Boys to see who they're -- and when you brought 3 that up, I said, What a wonderful example. 4 SENATOR HANNON: It was right in Hempstead, 5 and I didn't even go looking for it. 6 DR. LAWRENCE EISENSTEIN: That's right. 7 SENATOR HANNON: I just needed a windshield 8 wiper. 9 DR. LAWRENCE EISENSTEIN: And my inspector 10 might be there to collect the windshield wiper, but 11 other than that, we're not checking who they're 12 selling this product to. 13 SENATOR HANNON: And the other thing that 14 really caught my eye was the presence of other 15 things that are in the e-cigarettes. 16 I just wasn't really in the forefront of, 17 propylene glycol? 18 DR. LAWRENCE EISENSTEIN: The 19 diethylene glycol, yeah. 20 SENATOR HANNON: Diethylene glycol, is this 21 something that's in each of the e-cigarettes? 22 DR. LAWRENCE EISENSTEIN: We don't know, and 23 that's one of the challenges. 24 One of the challenges is, there's no 25 standardization. 1 And one of the points that I wanted to make 2 is, you know, before a therapy or a drug is 3 approved, the standard by the FDA, in general, is 4 that it has to be shown to be effective and do no 5 harm. 6 And in the case of e-cigarettes, the data 7 doesn't prove it to be effective, yet. In fact, the 8 data's very mixed. 9 And, certainly, as a gateway, it may be 10 causing more smokers. 11 And not only does it not meet that FDA 12 standard, but the "do no harm" standard, we don't 13 even know, fully, what's in the vapor. 14 The different vendors have different 15 chemicals and toxins, carcinogens. 16 But, again, what's marketed as "water vapor," 17 it doesn't smell the way water vapor should smell. 18 We know something's in there. 19 And so that's an example of, we need to know 20 exactly what's in there before we can even think of 21 letting our children have access to it. 22 So we agree with the State Health 23 Department's stance, that more work and more studies 24 are being done, and need to be done, but, certainly, 25 we wouldn't want a treatment for cigarettes that 1 does harm, especially to our youth who are using it 2 in alarming numbers. 3 SENATOR HANNON: Thank you. 4 We have been joined by 5 Senator Hassell-Thompson. 6 SENATOR HASSELL-THOMPSON: Good morning. 7 Thank you. 8 SENATOR HANNON: Do you have -- 9 SENATOR HASSELL-THOMPSON: [Shakes head.] 10 SENATOR HANNON: Dr. Eisenstein, thank you 11 very much. 12 DR. LAWRENCE EISENSTEIN: Thank you, Senator. 13 SENATOR HANNON: We really appreciate it, and 14 I appreciate NYSACHO devoting time to this, and it's 15 an important step. 16 DR. LAWRENCE EISENSTEIN: We've spent a lot 17 of time discussing it, and you have great support on 18 this. 19 And I think a lot of us, we're very excited 20 to see this legislation. 21 Thank you. 22 SENATOR HANNON: Thank you. 23 I'd like to ask Julianne Hart from the 24 American Heart Association, and Michael Burgess from 25 the American Cancer Society, to join us, together. 1 And as we're doing that, Senator Hoylman has 2 joined us. 3 Good morning, Senator. 4 MICHAEL BURGESS: Good morning, 5 Senator Hannon, and thank you for holding this 6 hearing, and members of the Committee. 7 I'm the director of state government 8 relations for the American Cancer Society Cancer 9 Action Network. 10 Other than in New York City which recently 11 passed regulations on e-cigarettes in public places, 12 the use and promotion of them is currently 13 unregulated for New York -- in New York State for 14 persons 18 and older, and poses a threat to the 15 decades-long battle against smoking. 16 They are not subject to the Clean Indoor Air 17 Act which permit -- permits -- prohibits smoking in 18 all public places and workplaces, including schools, 19 malls, playgrounds, hospitals, restaurants, and 20 bars. 21 And as Dr. Juster noted, it's one of the 22 three pillars of the antismoking policy that we have 23 in this state which has been successful in bringing 24 the smoking rate down. 25 E-cigarettes are not included in the 1 definition of "smoking," so people can use them, as 2 I said, anywhere at any time. 3 Their continued use and growing popularity 4 among middle and high school students, in 5 particular, undermines the public-health campaign to 6 prevent young people from starting with a deadly 7 nicotine addiction. 8 And manufacturers, as you've heard here 9 today, are also seeking to normalize smoking through 10 television ads and other well-funded marketing 11 strategies. 12 Let's be very clear about what you're talking 13 about with your legislation to include the 14 e-cigarette as products subject to the Clean Indoor 15 Air Act. 16 We are not taking away someone's right or 17 freedom to use e-cigarettes. 18 Those over 18 have that right, and your 19 legislation does not take it away. 20 Instead, it maintains the right of the 21 84 percent of nonsmokers, who are the overwhelming 22 majority in this country and state, to be in public 23 places without having clouds of unknown vapors being 24 emitted. 25 Let me say that again: Maintains the right 1 of the nonsmokers, the majority in this state and 2 country, to be in public places and not have to 3 worry about what these unknown vapors are. 4 According to the data from the Centers for 5 Disease Control and Prevention, nearly twice as many 6 middle and high school students experimented with 7 e-cigarettes in 2012 as in 2011, as you heard 8 before. 9 If e-cigarettes prove to be a gateway to 10 other products, leading to an increase in underaged 11 smoking, their usage would represent a serious 12 setback in the fight against tobacco-related 13 illnesses. 14 Also, new research made public this month by 15 the University of Colorado and Mississippi State 16 shows, quote, Electronic cigarette use has risen 17 quickly, with adult awareness doubling, from 18 16.4 percent in 2009, to 32.2 percent in 2010, and 19 ever use for adults, rising from 6/10ths of 20 1 percent in 2009, to 2.7 percent in 2010. 21 They concluded in this study that young 22 adults exclusively used flavored e-cigarettes. Many 23 young-adult users are current and former smokers, 24 suggesting e-cigarettes are used to maintain 25 nicotine addiction, and may reexpose former smokers 1 to nicotine. 2 Additionally, young adults are not using 3 e-cigarettes as a cessation alternative. 4 Continued research on patterns of use of 5 these products is needed; particularly, to 6 understand the age of initiation, flavoring, and 7 influence of marketing to inform public policy and 8 regulatory action. 9 That was a quote from that study. 10 While we have made great strides in the fight 11 to reduce e-smoking -- or, smoking rates, rather, 12 e-cigarettes are another gimmick to re-glamorize the 13 dangerous practice and get more people smoking. 14 They're offering e-cigarettes with 15 liquid-nicotine refills that come in the flavors 16 that were mentioned before. 17 I won't go through them all. 18 So I say, if e-cigarettes are all about 19 helping people to quit smoking, then why is the 20 advertising being done to re-glamorize it? 21 We've heard before, and I guess we're going 22 to hear from an expert on poison control, about 23 exposure to the liquid in these cartridges, so I'm 24 not going to go through that. 25 Let me just mention again, that they're being 1 proposed, and the idea is being sold, as a healthy 2 alternative, but you're going to hear later, but we 3 appreciate what Roswell Park has come up with in 4 terms of their study about what's in these 5 e-cigarettes. And you're going to hear directly 6 from them, so -- I assume, so I won't go through all 7 of that. 8 But it's very concerning to us what they've 9 come up with, that I think is, obviously, a threat. 10 I would also like to just stress that, you 11 know, we have other cessation methods, including 12 medications, and also counseling through the 13 tobacco-control program, which are recommended for 14 smokers, and which have been proven. 15 You know, the quit line, as I've said many 16 times in my work here, when we have the money for 17 that, and when those ads are on television, they're 18 very successful in driving up the number of calls to 19 the quit line. 20 Let me note again, that New York City just 21 passed a law that includes e-cigarettes. It just 22 went into effect under the Clean Indoor Air Act 23 provisions. 24 It's desirable, therefore, to have a uniform 25 statewide policy in all of the counties of the state 1 of New York. 2 That's important, not just because of what 3 we've said before about the usage in public places, 4 but, also, there's confusion about what is allowed. 5 Somebody goes into a restaurant or a bar and 6 they're wondering, you know, Why is that person 7 smoking, vaping, whatever it is? Are there two sets 8 of rules in public places now; one for cigarettes, 9 and one for e-cigarettes? 10 But, again, it comes down to the right of 11 persons who do not smoke to have the protection in a 12 public place, as I mentioned before. 13 That remains the standard on which 14 regulations and laws must be considered, and the 15 failure to protect the nonsmoking and non-vaping 16 public is not acceptable, and represents a very 17 clear erosion of the Clean Indoor Air Act. 18 Our organization is not taking a particular 19 position on your legislation regarding liquid 20 nicotine and the registration of e-cigarette 21 vendors, but we do think it's a good idea to 22 consider how to deal with a changing marketplace, 23 and what regulations are needed to protect health 24 and safety in light of the comments about poison 25 control. 1 Let me conclude by saying that tobacco usage, 2 as we have heard today, has caused millions of 3 deaths in this country and around the world. 4 And let me say personally, that my father was 5 a smoker, like most of the men of his generation, 6 over 50 percent of them, and he died of lung cancer. 7 He was almost 40 years old before the 8 surgeon general came out with his report in 1964. 9 And I'll speak, as having been involved, 10 obviously, in the Aging Services, and one of the 11 great statistics that I have worked with, is that 12 men are living longer. 13 It used to be we'd go out to places, senior 14 centers, and 1 out of every 3 people over 65 was a 15 man. 16 Today, because of reducing the rate of 17 smoking and improvements in heart-disease control, 18 that number is 42 percent. 19 So, we should not weaken the half-century 20 effort that's been successful in reducing smoking 21 rates and lung-cancer rates. 22 For those who wish to use e-cigarettes and 23 quit smoking, they will continue to have that right 24 in other places than those that are defined in this 25 law. 1 But for those who wish to open up a new 2 market and a new generation to addiction, I would 3 say that every legislator should be against that. 4 SENATOR HANNON: Thank you. 5 Ms. Hart. 6 JULIANNE HART: Hi. I'm -- 7 Is this on? 8 Can you hear me okay? 9 SENATOR HANNON: Yes. 10 JULIANNE HART: Hi, I'm Julianne Hart with 11 the American Heart Association. We are the largest 12 volunteer organization dedicated to building 13 healthier lives free of heart disease and stroke. 14 On the first page of my written testimony, 15 you will see a graph which shows the numbers, 16 percentage, of heart-disease and stroke deaths. 17 Heart disease is the number one killer in 18 New York, and stroke is the number four killer. 19 In 2010, nearly 45,000 people in 20 New York State died of heart disease, and over 21 6,000 people passed of stroke in New York State in 22 2010. 23 As you know, smoking is a major risk factor 24 for cardiovascular disease. 25 Fortunately, New York State has made great 1 progress, and approximately 16 percent of New York 2 adults smoke, and about 12 percent of youth are 3 still smoking. 4 So we've made progress, but there's more to 5 be done. 6 Part of our -- the gains that we have made 7 have been a result -- as a result of the state's 8 Clean Indoor Air Act. 9 The Clean Indoor Air Act was enacted just 10 over 10 years ago, and I'm sure you'll recall at the 11 time that there was significant controversy over 12 this. 13 Everyone made claims that, you know, bottom 14 lines, that people weren't going to make ends meet. 15 But the bottom line is, as a result of your 16 actions, New Yorkers are healthier, thanks to the 17 Clean Indoor Air Act. 18 Specifically, there's been significant 19 reductions in the rate of hospitalizations for 20 heart attacks in the 3 1/2 years after the law 21 passed compared to the period prior to the law. 22 Hospitalizations were 15 percent lower than 23 expected had there been no change in the 24 Clean Indoor Air Act. 25 And it's estimated that in the first year 1 alone, there was approximately 3800 fewer hospital 2 admissions for heart attacks, with an estimated cost 3 savings of 56 million. 4 However, we know now there's a significant 5 loophole in the Clean Indoor Air Act, and that's 6 electronic cigarettes. 7 So we've seen in recent years the 8 proliferation of these products. 9 E-cigarettes were not available when the act 10 was implemented. 11 They are mostly unregulated, and their health 12 effects are not fully known, especially when 13 considering long-term use. 14 And while additional research is needed, we 15 are concerned that e-cigarette use and acceptance 16 has the potential to renormalize smoking behavior, 17 sustain dual use alongside cigarettes, and initiate 18 or maintain nicotine addiction. 19 As many of the speakers before me have noted, 20 e-cigarettes are not approved cessation devices. 21 The most effective way to help smokers quit 22 are the seven approved FDA therapies, along with 23 counseling. 24 So we would strongly encourage the State to 25 promote those therapies, versus any type of 1 electronic cigarette, at this point. 2 We applaud the actions you've taken to date, 3 particularly the law which bans the sale of 4 e-cigarettes to minors. 5 And we would encourage the State to go 6 further at this point. 7 We do believe that electronic cigarettes 8 should be included within the definition of 9 "tobacco products" in law, and that would include 10 banning the use of e-cigarettes in public places as 11 is currently done under the Clean Indoor Air Act. 12 We would also support prohibiting the sale 13 and marketing of tobacco to minors, which some of 14 that is done, and taxing at a tiered structure. 15 So, thank you. 16 SENATOR HANNON: Thank you very much. 17 I appreciate it. 18 I don't have any questions. 19 Senator Thompson? 20 Senator Hoylman? 21 Senator Martin Golden? 22 SENATOR GOLDEN: No questions. 23 SENATOR HOYLMAN: I have a question -- 24 SENATOR HANNON: Please. 25 SENATOR HOYLMAN: -- for Mr. Burgess. 1 And I apologize for coming late. 2 And thank you, Senator Hannon, for your 3 leadership on this important issue. 4 Why hasn't the FDA, in your opinion, done any 5 initial data release on health impacts of 6 e-cigarettes? 7 I mean, they've been silent, because of, 8 I guess, data is forthcoming? 9 Do you have any expectation when they will be 10 sharing that information with the public? 11 MICHAEL BURGESS: Well, we just heard earlier 12 from the Health Department, that -- well, in April, 13 that Food and Drug Administration uttered its first 14 comments on this, and opened up the regulation that 15 now is in public comment period, as they were 16 talking about. 17 So, they've started the process. 18 I mean, obviously, people have been waiting 19 and waiting and waiting for them to take action, and 20 I would expect that we'll be seeing more from them. 21 But, I think there's a concern that it's 22 taken a long time, and it may continue to take a 23 while. 24 But, as far as the data, I'm not sure exactly 25 if they released any data that day when they came 1 out with this, or not. 2 But, we're all looking for them to lead and 3 to give as much information as they possibly can, 4 and to look at some of the areas that they didn't 5 even want to talk about in the initial round of 6 regulation, which is, like, the flavoring and other 7 things. 8 SENATOR HOYLMAN: Have you seen any -- from 9 your network of cancer-research advocates, any 10 health impacts? 11 Or is there any suggestion that -- at this 12 point, that there is a secondhand vapor concern, or 13 anything to that effect? 14 MICHAEL BURGESS: Well, I think that that is 15 exactly what's coming out now. 16 I think that, for quite a while, until the 17 last few months, we have heard a lot about, you 18 know, the marketing and the benefits, in terms of 19 trying to stop smoking. 20 But now we're hearing, and you're going to 21 hear today, I mean, I -- we -- I mentioned briefly 22 that Roswell Park has a memo in support of this 23 bill, and they're going to talk about that. 24 And, there was a major "New York Times" story 25 last week, talking about what you heard earlier, 1 about, when these are heated at a high level, what 2 the emissions are. 3 So there is concern about the emissions, and 4 that they might become toxic, or even 5 cancer-causing, at a high level of heat. 6 SENATOR HOYLMAN: Thank you. 7 SENATOR HANNON: Thank you very much. 8 Appreciate it. 9 I would ask Dr. Andrew Hyland, who is with 10 the Roswell Park Cancer Institute, and 11 Dr. Michael Holland, who's with the Upstate New York 12 Poison Control Center, to join us. 13 Now, obviously, there's only -- oh. 14 And you are...? 15 ANDREW HYLAND, Ph.d.: Dr. Hyland. 16 SENATOR HANNON: Dr. Hyland. 17 We've never met, so I don't know... 18 ANDREW HYLAND, Ph.d.: Let me get organized 19 here. 20 SENATOR HANNON: And Dr. Holland. 21 DR. MICHAEL G. HOLLAND: Yes, sir. 22 SENATOR HANNON: Maybe we'll call Dr. Hyland 23 first, and then -- unless you have another order 24 that you decided on? 25 Okay. 1 Thank you for joining us. 2 Thank you for coming to Albany, and 3 I appreciate both of you have a ways to go. 4 ANDREW HYLAND, Ph.d.: Lifelong New Yorkers. 5 This is an important issue, obviously. A lot 6 of interest and discussion. 7 Thank you, Chairman Hannon, and other members 8 of the Committee. 9 You know, I'm the chairman of the Department 10 of Health Behavior at Roswell Park Cancer Institute 11 in Buffalo, New York. 12 I have been doing tobacco control for 13 20 years. We've published over 200 papers, numerous 14 grants, contracts. 15 I'm the deputy editor for the "Journal of 16 Tobacco Control." 17 And, I'm the scientific principal 18 investigator for a big cohort study of tobacco 19 users, both -- that the FDA will be looking at as 20 the evidence begins to come out. 21 I also am the director of the New York State 22 smokers' quit line. 23 So that's a little bit of a background on me. 24 Thank you again for the invitation. 25 I'll start my remarks with a summary of some 1 of the problem that we face. 2 And some of what I've talked about, 3 obviously, has been raised by other panel members 4 previously. 5 I'm going to describe some facts about 6 e-cigarettes, some of which I think you've not heard 7 in previous testimony; describe some of our relevant 8 research at Roswell Park that we've been doing on 9 e-cigarettes; and conclude with some thoughts and 10 implications about some of the marketing, as well as 11 the Clean Indoor Air Act. 12 And, again, I'm not here to really advocate 13 on a position on any bill that you might have before 14 you, but, really, to help share some of our 15 scientific expertise that we have, so that when you 16 come to your decision-making, you'll have that at 17 your disposal. 18 You know, the problem, tobacco use, it's the 19 number one preventable cause of disease in our 20 country. 21 You know, 23,000 New Yorkers die each year. 22 The Surgeon General has put out a new 23 statistic, like, in New York State, of those that 24 are under 18 years of age, if you track them over 25 their lifetime, 270,000 of them will die from a 1 cigarette-attributable disease. You know, a quarter 2 million people. 3 Really looking at a huge, huge problem that 4 we still have, despite the advances that we've made 5 decreasing smoking prevalence. 6 With regard to e-cigarettes, let me state up 7 front what my position is on this, and let me finish 8 the whole thing. I don't want to be taken out of 9 context here. 10 It's my view that there's reason to be 11 hopeful about the potential of e-cigarettes to 12 reduce the disease-burden caused by tobacco. 13 The best thing that a smoker can do is to 14 quit altogether. Without question, that's the best 15 thing. 16 But short of that, if a smoker is able to 17 switch completely from those combusted cigarettes to 18 an e-cigarette, while the evidence is still 19 emerging, it's my belief that that's probably going 20 to be beneficial to that individual, without all the 21 toxic byproducts. 22 However, a big "however" here, is that 23 there's reason also to be very concerned about the 24 potential unintended consequences of electronic 25 cigarettes and their marketing, and this is where we 1 are, because this is an experiment that's happening 2 in real time, and we don't have all of the evidence 3 on which to make these decisions. 4 Some people may use cigarettes as a reason 5 not to quit smoking, but as a reason to continue 6 smoking, as sort of a psychological crutch to think, 7 Oh, if I reduce the amount that I'm smoking by a few 8 cigarettes per day, that that's okay. Or, I can go 9 out and use an e-cigarette while I'm in a social 10 venue, that that's -- that they're mitigating their 11 risk. 12 Youth that have never smoked may take up 13 e-cigarettes, and former smokers may come back into 14 the tobacco-using marketplace. 15 All of these things would be bad outcomes for 16 public health. 17 And how these products are marketed is a key 18 driver of these behaviors. 19 Research is underway to understand these 20 issues, but in the meantime, it's sensible to 21 discuss policies that address some basic 22 foundational issues. 23 And I understand that there are several bills 24 that are under consideration at the moment. 25 Looking at some facts about e-cigarettes, 1 I think you heard some testimony about how they 2 work. 3 There's a liquid, it's vaporized, the 4 nicotine comes off, and the user breathes that in. 5 And that's the vaping process. 6 Sometimes you'll hear people, the term 7 "vaper." 8 There's flavors, all kinds. You know, 9 chocolate, sex on the beach, mint...you name it, 10 it's out there. 11 And, nationally, e-cigarettes, gross sales 12 are about $2 billion this year. 13 At least one stock analyst for Wells Fargo 14 has put a bold prediction out there that, within 15 10 years, the sales of e-cigarettes will surpass 16 that of conventional cigarettes. 17 So, in terms of fads or not, this looks like 18 it's here for a while. 19 In terms of patterns of use, you've heard the 20 Center for Disease Control's statistics, looking at 21 the doubling in youth uptake from 2011 to 2012. 22 We also see a similar pattern, an increasing 23 uptake in adults. 24 Most of the e-cigarette use that we do 25 observe, both in youth and adults, are among 1 cigarette smokers. And I think it's safe to say 2 that the evidence is not conclusive at all that 3 e-cigarettes help people quit smoking. 4 Dr. Juster referred to the one clinical trial 5 that's been done, which showed no difference in quit 6 rates, and, different people will use for different 7 reasons. And, again, the marketing will come into 8 play here. 9 So, I mean, a fundamental issue, when 10 thinking about this, is do e-cigarettes pose a risk? 11 And I think the answer is an unequivocal yes. 12 While, overall, e-cigarettes appear to be 13 less harmful in terms of the numbers and the amount 14 of toxic chemicals, they're not safe. 15 So, somebody comes out and says e-cigarettes 16 are a safe alternative, that's not correct. 17 And we know they make toxins that are 18 harmful. 19 And our group at Roswell Park has been at the 20 forefront of research, and here's just a couple -- a 21 couple highlights of some of our work. 22 As mentioned previously, e-cigarettes may 23 expose users to carcinogens. 24 And with these newer e-cigarette devices, 25 there's a voltage, and that can be variable. 1 The higher-voltage devices tend to emit more 2 toxins. 3 What are some of the toxins that are there? 4 In particular, formaldehyde was mentioned, 5 and formaldehyde is an embalming agent. And they're 6 emitted, and these things are -- and formaldehyde is 7 also carcinogenic, and can be emitted into the air 8 which can be breathed and can be harmful to 9 non-users. 10 Secondhand vapor is also a concern. 11 Work in our lab shows that e-cigarettes are 12 not emission-free. 13 They include nicotine; acrolein, which is a 14 weed killer; formaldehyde; and other chemicals. 15 So while the concentrations of these toxins 16 is less than what you see coming off of a burning 17 conventional cigarette, it's still -- it's a matter 18 of, you know, just a little bit of poison versus a 19 lot of poison. 20 And so, when it comes to looking at 21 smoke-free policies, again, the intent is really to 22 try to provide smoke-free and healthy air for 23 employees to breathe. 24 So there's health risks associated to the 25 users. Secondhand vapor or smoke issues to 1 non-users. 2 We've also done studies about thirdhand 3 exposure, which would be like the residue that you 4 would see. And, again, we see that kind of residue 5 coming off of e-cigarette vapors, again, sort of 6 complementing what we see from cigarette smoke. 7 I understand the Committee's also looking at 8 issues regarding e-liquid. And I think you've heard 9 about some of the poison-control statistics. And 10 there's the graphic over here from a previous 11 speaker on the right -- on my right. 12 Scientific research is ongoing, and in the 13 near future, we'll be used to more helply -- more 14 clearly delineate the health risks and net 15 public-health impact of these devices. 16 But while the content and emissions from 17 e-cigarettes are being analyzed, the behavioral 18 risks are also being assessed. 19 So it's not just the products themselves, but 20 it's how they're used, which is what confers risk. 21 As I mentioned earlier, there's reason to be 22 hopeful about e-cigarettes for improving public 23 health if they serve as a transition for people to 24 get off of conventional cigarettes completely, but 25 that's a big "if" that's there. 1 And there's also significant reason to be 2 concerned if we fall short of that goal. 3 And I mentioned the marketing for 4 e-cigarettes plays a role. 5 You know, since 1971, you can't advertise 6 tobacco products on television, but there's no 7 current restrictions on e-cigarettes. And, 8 unfortunately, the FDA deeming rule that was 9 published last month is silent on the issue of 10 e-cigarettes and marketing, perhaps to be taken up 11 at a later time for a later rule. 12 A recent report estimates about 59 million 13 was spent on e-cigarette advertising in 2013. 14 And I just wanted to show a couple of 15 examples of what we see when it comes to some of the 16 marketing here. 17 So, let me see if I can... 18 Many of you might recognize this character. 19 You know, the great Yankee catcher, 20 Yogi Berra, the great philosopher, one of his, you 21 know, sayings was, "Looks like deja vu all over 22 again." 23 And that's exactly how I feel when it comes 24 to this. 25 So, looking here on the panel, some examples 1 of both cigarette ads juxtaposed with cigarette ads. 2 It's really the same message: Switch but don't quit. 3 And on the top middle, this is a True 4 cigarette-brand ad. This is from, like, 1974, 1975. 5 Considering all I heard, it's about low tar. 6 Low-tar products. 7 "Either quit or smoke True." 8 "I smoke True." 9 Again, that message to say, you don't have to 10 quit. You know, we've got a safer alternative for 11 you. 12 And blu e-cigarettes, on the top left; again, 13 the same exact message. 14 We see rugged men and beautiful women. 15 Again, the e-cigarette ad, on the left. 16 The Marlboro cowboy on the right. 17 And, again, blu e-cigarette versus the 18 Virginia Slim model. 19 It's, you know, virtually, the same ads and 20 just scrubbed out the text. 21 Music festivals and sports sponsorships; 22 again, blu e-cigarette festival, a cool jazz 23 festival. 24 You know, and the two racing cars. Even the 25 angle, that might even to be same car. I think 1 that's just layered. 2 So, again, replaying a successful marketing 3 campaign. 4 Again, e-cigarette ad, FIN e-cigarette brand. 5 Pall Mall, this is an ad from, I think, the 6 '40s, looking at here. 7 Virtually the same. 8 And the flavors, we've heard about the 9 flavors. 10 Again, the blu e-cigarette ads versus the 11 Camel cigarette ad, on the right. 12 Celebrity spokes people, again, really 13 juxtaposed, using that same playbook. 14 And, of course, you know, sex always sells. 15 If you haven't checked out the Swimsuit Issue 16 this year, the e-cigarette ad, I didn't know that 17 the bikini bottom would be a billboard for 18 blu e-cigarettes. 19 And, apparently, the online version, young 20 teenage boys can go and zoom in, and just make sure 21 things are spelled correctly, I guess, on that. 22 So that's an example of how some of the 23 marketing. 24 Now, obviously, marketing is a difficult 25 issue to deal with, but I think definitely shapes 1 who this target audience is. 2 If we're looking at a 50-year-old cigarette 3 smoker, say, "Hey, use my product, my e-cigarettes, 4 so you can get off of those cigarettes completely, 5 and then maybe transition to get off of those 6 completely," that's a good outcome. 7 But that's not what we're seeing here. 8 I've heard some say that, in fact, these 9 companies are their own worst enemy on this because 10 they might find sympathy in those that are looking 11 for a public health -- a product that could benefit 12 public health. 13 But when it's marketed like this, there's 14 concern. 15 And just, briefly, to summarize here: 16 In 2003, New York State took a strong stand, 17 a leading national stance, with their Clean Indoor 18 Air Act, protecting health of both smokers and 19 nonsmokers. 20 And public forums like this provide an 21 opportunity to share information about the relevant 22 science needed. 23 In 2003 e-cigarettes didn't exist, so it's 24 very sensible to say, let's -- you know, we've got a 25 new issue, new concerns, and let's see if it makes 1 sense to try to incorporate that. 2 And, again, the science that our group and 3 other groups have performed; so, that there are 4 toxins in e-cigarette vapor, and that they can 5 provide exposure to non-users in public places. 6 So, a very complex issue, lots of layers 7 involved. 8 I appreciate the opportunity to speak briefly 9 before the group, and would be happy to answer any 10 questions after, from this panel. 11 SENATOR HANNON: Dr. Holland. 12 DR. MICHAEL G. HOLLAND: Thank you, sir. 13 Appreciate the chance to come talk to you. 14 I'm a physician toxicologist at the 15 Upstate New York Poison Control Center, and we're 16 housed at the SUNY Upstate Medical University in 17 Syracuse, New York. 18 I just wanted to echo some of the comments 19 that others have made, and I'm just going to briefly 20 make some comments, and I'm here to answer any 21 questions, basically. 22 We have seen an increase in calls related to 23 e-cigarette liquid nicotine. 24 In 2013, we had 27 total calls to the 25 Upstate New York Poison Center. 1 In 2014, just in the first 4 months, we've 2 already had 27. 3 So it's really, basically, a 300 percent 4 increase in calls related to this. 5 About half or -- about a third of these calls 6 have been for children under age 5 accidentally 7 stumbling all upon these liquid products. 8 And the danger with these is that, that 9 they're so concentrated. You know, the toxicity of 10 nicotine, we've known about, because kids, as 11 they -- toddlers especially, as they explore their 12 environment, they tend to put things -- they look at 13 something and then put it in their mouth. 14 Cigarettes don't taste very good so they 15 often never get, you know, any toxicity. 16 If they do, the toxicity involves, first of 17 all, vomiting. And they'll often self-decontaminate 18 because they vomit up many -- much of the stuff 19 they've ingested. 20 So the problem with the liquid nicotine is 21 they're so much more concentrated than a cigarette, 22 that just small amounts can be lethal. 23 The LD50, which is the lethal dose that will 24 kill 50 percent of a population, it's -- you know, 25 it's extrapolated from animal studies. But we also 1 know, in humans, that about 1 milligram per kilogram 2 of nicotine can kill you. So, 1 milligram ingested 3 per kilogram of body weight. 4 So a child that weighs, you know, 5 5, 10 kilograms, there's the small amounts that can 6 kill them. 7 And many of these products that are not in 8 child-proof packaging are liquids that contain 9 19 milligrams per ml. 10 So just a teaspoon would have over 11 100 milligrams, so it could easily be lethal. 12 And even -- and even the concentrated 13 formulas like that, could even be -- small amounts 14 could even be lethal to adults. 15 Nicotine is so toxic that it previously was 16 one of the best available pesticides. 17 People sprayed it on crops before there were 18 other more readily available chemical manufactured 19 pesticides. But it's still an effective pesticide, 20 so it's used to kill things, so it can be lethal in 21 high amounts. 22 We at the Upstate New York Poison Center 23 serve 7.4 million New Yorkers. 24 We cover all the counties north of Orange and 25 Westchester county. 1 And then the other poison-control center in 2 the New York poison system is the New York City 3 Poison Center that covers the rest of the counties 4 and Long Island and New York City. 5 And the other danger that you don't see with 6 other nicotine-replacement products, such as the gum 7 and the lozengers [sic], is that the nicotine is 8 well-absorbed through the skin. It's one of the 9 unique toxins. It doesn't just have to be ingested. 10 So you can absorb it by vaporizing it in the 11 e-cigarettes, but you can also absorb it by 12 accidental swallowing it. 13 But you can also get toxic from absorption 14 through to be skin. 15 There's a well-known occupational illness 16 called "green-tobacco illness," or "green-tobacco 17 sickness," where people that are picking tobacco, if 18 it's moist tobacco, or if they get sweaty and the 19 tobacco leaves get wet, and get on their skin, they 20 can actually absorb nicotine very readily and get 21 sick. 22 It's a known occupational illness. 23 So we know that nicotine is well-absorbed 24 through the skin. 25 And there have been -- of these calls that 1 we've received, there have been three calls already 2 this year of skin toxicity from exposure to these 3 concentrated nicotine liquids. 4 SENATOR HANNON: What would people -- people 5 arguing against this bill have said to me -- 6 It would help, I guess, if I turned the mic 7 on. 8 People arguing against the bill have said, 9 Well, there's other dangerous substances in the 10 home. You know, Drano, or something like that. 11 What would you -- are you getting, you know, 12 similar types of calls about other poisons at the 13 home; just cleaning agents, or something like that? 14 DR. MICHAEL G. HOLLAND: Sure. 15 And many of those are -- have some protective 16 packaging on them. And they're also -- consumers 17 know that those are toxic products, and they're 18 kept -- through poison education, we try to make 19 sure people keep them, you know, in locked cabinets 20 where toddlers can't get at them. 21 Drano and those kind of things are very 22 toxic, understandably. 23 But, the consumers don't understand how toxic 24 these can be. And they're not sold in any kind of 25 protective packaging. 1 Many of them are just in colorful bottles 2 that have a lid you unscrew and you have 3 dropper-type things. 4 You can even buy them online. You can buy 5 these things in huge quantities. They even sell it 6 in a 55-gallon drum. 7 So, they can sell it by the liter, you know, 8 because it's very cheap to buy it in bulk, and then 9 use it in your refillable e-cigarette things. 10 So these are not in child-proof packaging, 11 and the consumers don't really realize how that 12 there's lethal doses in just small amounts of these 13 that's in their home. 14 SENATOR HANNON: What about the cartridges; 15 do you get any calls about use or misuse of that? 16 DR. MICHAEL G. HOLLAND: The ones that are 17 not -- that are like the blu, or the type that are 18 not, you know, refillable, that are just 19 single-use-type things, there haven't been very many 20 bad outcomes or calls regarding those. 21 Most of the calls, and the major increase, is 22 in the these liquids that are the refillable types, 23 the concentrated liquids. 24 SENATOR HANNON: Okay. 25 Does anybody have any question? 1 Senator Hoylman. 2 SENATOR HOYLMAN: I just wanted to point out 3 to Dr. Harlan, I think the reason why we're seeing a 4 repeat of marketing with e-cigarettes, harkening 5 back to the glory days of traditional cigarette 6 advertising, is that a lot of the major brands are 7 now owned by big tobacco, so they're just rolling 8 out, you know, old campaigns with new devices. 9 Altria, R.J. Reynolds, Lorillard, they own 10 the brands at this point, or major portions of the 11 big brands. 12 Also, I would want to point out, are 13 e-cigarette devices themselves, which I think have 14 an allure to young people. 15 Some of them are, you know, festooned with, 16 you know, fake gems. And I've seen one device that 17 is a Hello Kitty vapor device. 18 I would think those would be extremely 19 attractive to young people, as well as pose a danger 20 to children should they fall, you know, into their 21 hands. 22 I have a 3-year-old, and anything that has 23 Hello Kitty on it is fair game. 24 DR. MICHAEL G. HOLLAND: And I think it's 25 important to understand that nicotine is not -- most 1 of the source of the nicotine in these products is 2 from tobacco. That's where they get it. 3 So, it's a place to market the crops. 4 When you grow tobacco, you can produce 5 nicotine and put in it these products. 6 ANDREW HYLAND, Ph.d.: That's a very 7 perceptive comment. 8 SENATOR HANNON: Well, I thank you for coming 9 here and laying into the record exactly all of the 10 important knowledge and findings that you have, and 11 I appreciate it very much. 12 ANDREW HYLAND, Ph.d.: Thank you. 13 DR. MICHAEL G. HOLLAND: Thank you. 14 SENATOR HANNON: Thank you. 15 Next we want to ask Scott Wexler, who is 16 executive director of the Empire State Restaurant 17 and Tavern Association, and James Calvin, who's 18 president of the New York State Association of 19 Convenience Stores. 20 Mr. Wexler. 21 SCOTT WEXLER: Good afternoon, 22 Chairman Hannon, and members of the Senate Committee 23 on Health. 24 As you know, I'm Scott Wexler, and I'm here 25 today in my capacity as the executive director of 1 the Empire State Restaurant and Tavern Association. 2 I've been privileged to serve as the 3 executive director of the association since 1985. 4 The association represents thousands of 5 small, independent, on-premise alcohol-beverage 6 licensees who are located throughout the state, and 7 this includes restaurants, bars, taverns, hotels, 8 bowling centers, and other businesses that sell 9 alcohol for on-site consumption. 10 Thank you for the invitation to provide 11 testimony on behalf of our members to your hearing 12 today. 13 As the public discussion over the use of 14 e-cigarettes has been engaged, I've been struck by 15 how much the public-placed vaping bans are supported 16 by folks who base their position on the simple 17 argument that e-cigarettes are just like cigarettes 18 and, so, they should be treated the same. 19 According to the sponsors' memo, the bill is 20 advanced to further protect New Yorkers from these 21 dangers of these unregulated devices, particularly 22 given they have not been proven to be safe for use 23 at any age. 24 But our association doesn't see it this way. 25 Our fight over smoking in bars and 1 restaurants was principally over economic concerns. 2 Our members feared the business losses they would 3 suffer if smoking was banned. 4 Those fears were, for the most part, 5 unrealized. 6 There was a short-term dip in overall 7 restaurant and bar sales following the ban that was 8 disproportionately felt by a small segment of the 9 industry. 10 Unfortunately, they were our members, the 11 small bars and taverns, with the overwhelming 12 majority of businesses having no impact, or even 13 seeing an increase in sales after the smoking ban. 14 But even our members saw their businesses 15 stabilize and grow after a transition period. 16 So this history informs us not to be 17 concerned about any impact on business from a 18 public-placed vaping ban. 19 We object to this bill because of its assault 20 on our members' ability to run their businesses as 21 they please. 22 This is not about our concern about the loss 23 of business. 24 The association sees this as another attempt 25 by government to dictate how New Yorkers run their 1 businesses and live their lives, adding cost to the 2 bottom line and eroding their freedom to operate the 3 businesses as they desire, and we don't see any 4 evidence that justifies such an intrusive 5 imposition. 6 The Food and Drug Administration recently 7 proposed a federal regulatory framework for 8 e-cigarettes, and they issued a call for the 9 submission of scientific information on e-cigarettes 10 so they can assess the product more fully. 11 Some public-health advocates have taken note 12 of smokers using e-cigarettes to reduce or eliminate 13 their tobacco smoking. 14 They note that e-cigarettes have been 15 demonstrated to be as effective a smoke-cessation 16 devices as nicotine gum or the nicotine patch, but, 17 they may be more helpful for smokers, given the 18 similarities with smoking tobacco cigarettes, and 19 that any use of e-cigarettes, rather than tobacco 20 cigarettes, is positive, even if the smoker doesn't 21 quit smoking. 22 We believe the FDA is the appropriate agency 23 to review the science and make any determinations 24 about the safety or health risks associated with 25 using e-cigarettes, and to then let those findings 1 guide the regulation. 2 Once the FDA makes these findings, 3 New York State can consider a public-placed vaping 4 ban in the context of these expert findings. 5 If the FDA determines there is significant 6 harm to those who use e-cigarettes and/or those 7 around them, there will be a consensus to advance a 8 public-placed vaping ban, or something similar. 9 But there's no reason to prejudge the outcome 10 of the research and to jump to the conclusion that 11 e-cigarettes are an equivalent public-health risk as 12 tobacco smoke and enact this public-placed vaping 13 ban. 14 Don't take it from me. 15 The FDA's regulatory notice acknowledges that 16 emerging technologies, such as e-cigarettes, may 17 have the potential to reduce the death and disease 18 toll from overall tobacco-product use, depending on 19 who uses the products and how they are used. 20 According to the notice, if such products 21 result in minimal initiation by children and 22 adolescents while significant numbers of smokers 23 quit, then there is a potential for the net impact 24 at the population level to be positive. 25 We hope the New York State Senate has a high 1 bar for infringing on the rights of its citizens, 2 and that this imposition on the right to manage your 3 business with little evidence of public need falls 4 short. 5 Thank you again for permitting to us share 6 our association's comments. 7 I look forward to continuing to work with you 8 on this, and other subjects. 9 SENATOR HANNON: Senator Thompson wanted to 10 ask Mr. Wexler a question. 11 Senator Thompson. 12 SENATOR HASSELL-THOMPSON: Thank you. 13 Thank you, Mr. Wexler. 14 I had a meeting, but I stayed specifically 15 because I had read your testimony very quickly, and 16 I just wanted to direct a couple of questions and 17 concerns. 18 I notice that you first said that your 19 concern, initially, about smoking in public was an 20 economic one. 21 But now you've gone on beyond the economics 22 when you've seen that there are no negative economic 23 impacts to your businesses, to make a statement that 24 really is not in your purview. 25 And I say that because, one of the big 1 concerns, I remember having lunch in a restaurant in 2 New York City, and I was introduced to the manager. 3 And he recognized that I was one of the Senators who 4 had voted very positively yes to ban public smoking. 5 And he began to tell me, for close to an hour, about 6 the impact on his business. 7 And part of what I shared with him was, that 8 there might be some fall-off in the beginning, but 9 you will see an increase because many people don't 10 come to your restaurant because you do allow 11 smoking. And, very shortly, you will see an 12 increase. 13 As you have rightly said, that did happen. 14 That doesn't make me a prophet. It just 15 makes me understand a little bit about human nature. 16 And as someone is in the health field, my 17 concern, when we passed this bill, was not 18 necessarily to regulate what smokers do or don't do. 19 It is what your workers in your restaurants, 20 the impact on them. 21 One of the things that we're all aware of is 22 how long it takes the FDA to come up with a 23 determination and a decision and a finding. 24 And in many of the cases, we have found, that 25 in the process of waiting for the FDA's 1 deliberations, which is appropriate, perhaps, more 2 and more people are being impacted, and particularly 3 the public. 4 We have to be concerned about the public. 5 We have to be concerned about every aspect of 6 the public; the smokers and the nonsmokers. 7 As somebody who smoked for 25 years, 8 I believed all those ads. 9 I believed, when I moved from smoking -- 10 I never smoked Marlboros, but I did smoke one of 11 the strongest cigarettes on the market. And when 12 they put a filter on it, I thought that I was being 13 safe. 14 Well, we found that, I was not only being 15 safe, it was more deleterious to my health than 16 smoking without the filter. 17 I mean, these are things that take all of us 18 a long time to get to. 19 I appreciate the fact that Senator Hannon has 20 been very proactive in saying we can't afford, with 21 the numbers of children and young people who are 22 being initiated into smoking, because it's now sexy 23 and presumably safe, while we wait for the FDA. 24 So I'm here to ask you: How do you see us as 25 interfering with the ability of businesses to run 1 their business as they do, without our concern 2 being, foremost, about your employers -- employees, 3 as we wait for the FDA? 4 SCOTT WEXLER: Senator, thank you. 5 I don't disagree with you that the concern 6 about the safety of any product that would be used 7 or people would be exposed to in a restaurant goes 8 well beyond the smokers and the nonsmokers. 9 And I certainly accept your premise that we 10 have to be concerned about the impact on our 11 employees, as well as others who might be in the 12 public place. 13 But the difference between the conversation 14 back then about secondhand smoke was, the evidence 15 was clear, and, in fact it had been clear for years, 16 that exposure to secondhand tobacco smoke was 17 dangerous. 18 We may disagree, but -- 19 And Senator Hannon and I clearly disagree, 20 and we've had this disagreement politely and 21 professionally. 22 -- our association does not believe that 23 there's a similar predicate of information about 24 exposure to e-cigarettes being dangerous for our 25 employees or others who might be in our restaurants. 1 If the evidence were clear, then we would 2 agree with you that you shouldn't wait for the FDA. 3 But the FDA themselves have said they have 4 to -- the evidence isn't clear, and they want to 5 receive the information. 6 And we think that's a good position to take. 7 SENATOR HASSELL-THOMPSON: We don't disagree 8 with you in that aspect. 9 I think problematic for me, however, is that, 10 are you prepared for a lawsuit when the vapes 11 perhaps are -- if the FDA approves the fact that 12 these vapes have the same impact as secondhand 13 smoke? 14 SCOTT WEXLER: Senator, I'm not an attorney, 15 and I didn't come here this afternoon to theorize of 16 what the litigation strategies might be. 17 But I suppose that our members, like 18 everything else in their business, litigation is one 19 of those things that they might be exposed to. 20 If they thought about all the things that 21 could go wrong in their business, they probably 22 wouldn't put the key in the door every morning. 23 I do take your point. I think you make an 24 important point. 25 I believe our members disagree with your 1 position. 2 SENATOR HASSELL-THOMPSON: Okay. 3 Thank you, Mr. Wexler. 4 SCOTT WEXLER: Certainly. 5 SENATOR HANNON: Now, Mr. Calvin, we have 6 some questions of both of you afterwards, but 7 I thought I'd let you say that. 8 We're -- all Senators are trying to be 9 two places at once this morning. 10 JAMES CALVIN: I appreciate that. 11 SENATOR HANNON: Jim. 12 JAMES CALVIN: Mr. Chairman and honorable 13 members of the Committee -- 14 SENATOR HANNON: By the way, your submitted 15 testimony says "Continued"? 16 [Laughter.] 17 JAMES CALVIN: Yes, I'm coming back tomorrow 18 with the other half. 19 [Laughter.] 20 SENATOR HANNON: As long as you have it. 21 JAMES CALVIN: Well, let me at least present 22 the first half. 23 Thank you, Mr. Chairman. 24 The New York Association of Convenience 25 Stores is a statewide trade organization 1 representing 8,000 neighborhood mini marts, bodegas, 2 and convenience stores, the majority of which are 3 licensed by the State of New York to responsibly 4 sell tobacco products to adult customers. 5 Many of them also sell electronic cigarettes. 6 A smaller number sell e-liquids. 7 NYACS was one of the first entities to be 8 approved by the New York State Department of Health 9 as a provider of certified tobacco-sales training 10 under legislation authored by Senator Hannon. 11 I have personally trained over 7,000 retail 12 clerks and cashiers in the proper procedures for 13 preventing underaged sales in accordance with that 14 state law. 15 I'm proud to say that this type of training, 16 along with effective compliance enforcement by the 17 state and county health departments, and voluntary 18 good-faith efforts by responsible retailers, has 19 helped drive up New York's compliance rate, from 20 80 percent 15 years ago, to 95 percent today. 21 And every day, all of us, of course, are 22 striving to further improve that number. 23 We'd like to commend you, Senator Hannon, for 24 your principal leadership in the arena of 25 public-health policy, in general; and tobacco 1 policy, in particular. 2 We occasionally agree, obviously; we 3 occasionally disagree, obviously; but you've always 4 been thoughtful and forthcoming and respectful of 5 the retail industry's point of view. 6 New York State and New York City were among 7 the first jurisdictions in the nation to forbid 8 smoking in bars, restaurants, places of employment, 9 and other indoor areas. 10 They did so because the public-health 11 advocates insisted that exposure to secondhand 12 cigarette smoke could kill nonsmokers. 13 Well, private industry responded by inventing 14 a battery-operated nicotine-delivery system that 15 smokers could use in such places without exposing 16 others to secondhand smoke; the electronic 17 cigarette. 18 Now, some New Yorkers have responded to the 19 advent of e-cigarettes the way they might react to 20 seeing a spider on their kitchen floor, "quick, 21 stomp on it," without knowing whether it's really a 22 threat to their safety, and without regard for any 23 beneficial impact it may have. 24 Truth be told, the jury is still out on the 25 degree to which e-cigarettes are a smoking-cessation 1 tool, a public-health threat, or some combination of 2 the two. 3 The FDA has officially begun sorting that out 4 in an orderly fashion, undertaking the scientific 5 analysis necessary to objectively define benefits 6 and risks, and then properly balance them through 7 regulation. 8 Consistent with our commitment to preventing 9 youth access to tobacco-related products, NYACS is 10 on record supporting Senator Hannon's bill, S-7027A, 11 prohibiting sale liquid nicotine to minors, and 12 requiring such products to display ingredients and a 13 warning label, and requiring the containers to be 14 child-proof. 15 We have also endorsed another Hannon bill, 16 7139, to require standalone vaping shops to register 17 with the State, and undergo periodic undercover 18 compliance inspections just like retail tobacco 19 dealers do. 20 But in our view, outlawing the sale of liquid 21 nicotine to adult customers under any circumstances, 22 as proposed in S-6939A, and, completely banning 23 e-cigarette use wherever smoking is banned, as 24 proposed in S-6562, would be premature at best. 25 Why squish a product category that, for many 1 smokers, has already become the long-awaited viable 2 solution to quitting combustible cigarettes? 3 Why leapfrog the FDA by enacting an 4 e-cigarette-use ban based on conjecture that may or 5 may not conform to what the FDA ultimately deems 6 appropriate based on science. 7 If there are suddenly fewer places that you 8 can use an e-cigarette, will the transition from 9 combustibles to vaping be retarded, or even 10 reversed? 11 And is that in the long-term interest of 12 public health? 13 Before you stomp on that spider, we 14 respectfully implore you to first let the FDA 15 determine whether that's a black widow scurrying 16 across the floor, or a species that can help achieve 17 the public-health objective of further reducing 18 tobacco-related illness and death. 19 I also add that there are many others in the 20 e-cigarette industry that -- who would have liked to 21 have testified today. 22 One of them is Dr. Richard Carmona, a former 23 surgeon general of the United States, and native 24 New Yorker, who has joined the board of an 25 e-cigarette company called "NJOY." 1 He authored the 2006 Surgeon General's Report 2 declaring secondhand smoke a serious public-health 3 hazard. 4 He is far more knowledgable and articulate 5 and credible on this subject than I, and I urge you 6 in strongest forms to read the written comments he 7 prepared for this hearing, which I have submitted to 8 the staff. 9 Thank you. 10 SENATOR HANNON: Thank you. 11 Questions? 12 Senator Savino. 13 SENATOR SAVINO: Thank you, Senator Hannon. 14 Thank you, gentlemen, for your testimony. 15 Unfortunately, I had to leave before, and 16 I didn't get to hear some of the other testifiers. 17 I find myself in an odd position, because 18 I am probably one of the most obnoxious ex-smokers 19 you've ever met. 20 I also understand the lure of cigarettes, 21 though, and how dangerous they can be. 22 When I started smoking, I was 12. I could 23 walk into any convenience store that were a member 24 of your organization, and I would could buy 25 cigarettes for myself and my mother and my father. 1 You know, you could smoke anywhere. 2 You could smoke in a hospital. You could 3 smoke in a doctor's office. 4 You could smoke in the -- you could smoke 5 any -- it's the culture of where we were. 6 Restaurants and bars. 7 And when I quit smoking the first time, at 8 the age of 30 -- everyone can go figure out how old 9 I was -- how long ago that was -- they were just 10 beginning to crack down on indoor smoking in 11 offices. 12 And, again, for 12 years, I was -- no, 13, 13 I was an obnoxious ex-smoker. 14 And then when I went back to smoking, I was a 15 very avid smoker for a short period of time. 16 So I know how dangerous cigarettes are. 17 I used the e-cigarette once or twice, but 18 I quit the old-fashioned way, the second time. 19 What I'm concerned about, though, because 20 I -- again, I find myself in an odd spot. 21 I think we should do everything possible to 22 prevent people from getting access to nicotine 23 products that will allow them to become addicted to 24 something that I will be addicted to for the rest of 25 my life. 1 So I support the idea of preventing people 2 from buying e-cigarettes before the age of, I think, 3 21. I think 18 is still too young. I think we 4 should move cigarettes to 21. 5 And we should be consistent across the state 6 on that. 7 I don't think we should allow people to buy 8 the liquid stuff and recharge it. 9 But I look at the e-cigarette, and I see that 10 we don't have the evidence that the surgeon general 11 has produced for secondhand smoke; that evidence 12 that took decades to really produce, to show the 13 effects of secondhand smoke. 14 And that's what led to the indoor smoking 15 ban. 16 I look at restaurants and bars now. 17 They're certainly much nicer. You know, you 18 don't walk out of there stinking. 19 But then I look at what's outside the door, 20 and that's where smokers go, and they stand in front 21 and they smoke. 22 Go outside any major, you know, office 23 building in Manhattan. 24 And, we're concerned about the effects of 25 secondhand smoke; and, yet, every one of us walks 1 through a cloud of it to get in and out of buildings 2 or out of bars and restaurants. 3 And so I wonder, if we do this, if we 4 restrict them, or cover them by the indoor smoking 5 ban, will they be standing outside your restaurants 6 and bars smoking their e-cigarette, and how long 7 before they go back to smoking real cigarettes? 8 SENATOR HANNON: That is a question? 9 SENATOR SAVINO: No. 10 I'm just -- how -- so you look at -- you look 11 at -- we have the science, scientists, but then we 12 have the people who are going to have to enforce it; 13 and that's our bars and restaurants, that's our 14 convenience stores, that's our other retailers, who 15 are going to have to be responsible for enforcing 16 this. 17 And I'm curious as to whether or not you feel 18 that this would be an additional burden on you, and 19 how you're going to enforce it consistent with what 20 we do with regular cigarettes now. 21 I know it was a long question, but I got 22 there to the end. 23 SCOTT WEXLER: It was a good question, 24 Senator Hannon. 25 Thank you, Senator Savino. 1 I think that managing the use of an 2 e-cigarette in a restaurant or a bar is no different 3 than any of the other challenges that you have. 4 By the way, we support the owner of a 5 restaurant or a bar deciding the best way to solve 6 the problem is to ban it completely. That's their 7 privilege. 8 But we see exactly the scene in front of our 9 establishments, people leaving their drinks, going 10 outside. 11 In some urban locations, we have issues with 12 noise, from the neighbors, from people gathering 13 outside. 14 And while there's a lot of concern about our 15 employees who might be exposed to secondhand smoke, 16 e-cigarettes is a product that we are now seeing 17 some of our employees starting to use. 18 Instead of going out for a 15-minute 19 cigarette break when you're working behind the bar 20 or on the dining room floor, you can step into a 21 side space, have a puff or two, as you've 22 experienced with the e-cigarette, and go on. 23 So unless and until we see that information 24 that's out there that would support something 25 more --a broader ban, we really do believe that you 1 ought to let us try to sort it out. 2 We'll probably sort it out reasonably well, 3 because having our customers happy is what we do. 4 We're in the hospitality business. 5 SENATOR SAVINO: The City of New York 6 recently adopted adding e-cigarettes to the indoor 7 smoking ban. 8 Has -- how has that worked out so far in 9 terms of enforcement? 10 SCOTT WEXLER: It's really pretty new. 11 And from talking to our folks down there, 12 they're just beginning to have the experience. And 13 I think we really need to take some time. 14 I will say that, when we look at the 15 cigarettes, one of the reasons that we don't see it 16 as an economic loss, is that it's not like -- as 17 Mr. Calvin was saying, it's not like a large portion 18 of the community is engaged in this behavior, or a 19 large portion of our patrons were. 20 You know, when the City and State and 21 localities were regulating smoking in bars and 22 restaurants, there were a lot of our customers who 23 were smoking, and we had to referee that. 24 I actually think we are aware of very few of 25 our customers who are engaging in e-smoking because 1 it's not an obtrusive behavior. It's not something 2 that you have to do and be very demonstrative about 3 it. It's something you do fairly quietly, and to 4 yourself. 5 SENATOR HANNON: Senator Golden. 6 SENATOR GOLDEN: Thank you, Mr. Chairman. 7 And thank you, gentlemen, for being here 8 today. 9 I'm one that would like to err on the side of 10 caution and make sure that we have all the 11 information that is needed and required. 12 But I do believe Senator Hannon has some good 13 bills that we should probably move forward. 14 There's a difference, obviously, between a 15 liquid and cartridge, that's still to be determined 16 as to health risk. 17 But we've noticed that, on the liquid form, 18 they're [unintelligible] using nicotine, but they 19 use liquid hashish, they will use different types of 20 narcotics. It's becoming the new fad for their new 21 hashish pipe, in certain areas. 22 As far as enforcement, enforcement in the 23 restaurants is -- it's very good. Now there's 24 plenty of enforcement in the restaurants. 25 The enforcement that's lacking is in the 1 actual sale of the cigarettes and the actual sale of 2 the products, and, there is no enforcement. 3 The enforcement across the state of New York 4 is to about 17 people. 5 And I think we have two or three agents in 6 all of the city of New York. 7 Everybody knows that nothing happens between 8 or after, before 9:00 in the morning and after 9 5:00 at night on Monday to Friday, so there is no 10 enforcement whatsoever. 11 And the estimates out there are, 6 in 10 on 12 the cartons of cigarettes being sold in the city of 13 New York and across the state of New York are from 14 outside the state of New York, and are with bad 15 stamps, and that it's costing the state of New York 16 somewhere in the category of about $2 billion a year 17 in untaxed cigarettes that are being sold in these 18 locations across the city and the state. 19 So that's one of our biggest problems, is 20 going to be enforcement. Being able to get that 21 $2 billion back that's being lost in the state, but 22 making sure the regulations work across the state of 23 New York, and that there are enough people going in 24 and throughout the delicatessens, bodegas. These 25 are even being sold in supermarkets and in 1 drugstores and our chain stores, are illegal 2 cigarettes being sold. 3 I mean, it's really something that the 4 State of New York has to get more serious about. 5 And I think we got to be very, very cautious 6 about placing this type of product in the store 7 where there is no regulations or limited regulation. 8 So mine is more of a statement. 9 You can respond to it, but that's a -- I'm a 10 pro-business guy, but there has to be some form of 11 regulation. And I don't see any regulation in this 12 city, in this state. 13 JAMES CALVIN: Thank you, Senator Golden. 14 One of our concerns about the proposed 15 prohibition of the sale of e-liquids, is that 16 experience has proven, time and again, that in 17 New York, when you attempt to ban or overtax a 18 tobacco-related product, the customers stop coming 19 to our stores to buy it, but they find a way to get 20 it, from neighboring states, from the Internet, from 21 Native American tribal stores, all of which are free 22 from the encumbrances of New York State regulation 23 and taxation. 24 So, we lose the sale, but there's still 25 consumption going on. 1 And that's one of our biggest concerns about 2 on outright ban on the e-liquid product. 3 We think it would be far better to impose the 4 child-proofing provision, make sure that all retail 5 outlets are registered, make sure there's proper 6 labeling on the e-liquids, and so forth. 7 We hope you'll decide to stop short of an 8 outright ban, because what that will do is create a 9 black market for the product. 10 SENATOR GOLDEN: I believe you have good 11 actors and bad actors out there in all fields, in 12 all industries, but there are definitely many more 13 bad actors in your field when it comes to 14 cigarettes. 15 And I'm being, not facetious, but I'm being 16 totally honest. 17 There's a tremendous amount of untaxed 18 cigarettes being sold by members of your 19 organization. And it's sad that the State has 20 allowed this to get as far as it has. 21 I notice when a task force has been created 22 that has yet to meet, and I believe that we need to 23 deal with that issue before we put any type of these 24 e-cigarettes into sale into these locations. 25 JAMES CALVIN: Senator, I'm going to 1 respectfully object to the comment that members of 2 my association selling are illegal cigarettes or 3 illegally trafficking in cigarettes. 4 That is not the case. 5 And I defy you to show me a single one of our 6 members of the New York Association of Convenience 7 Stores that are selling cigarettes illegally. 8 SENATOR GOLDEN: You do not want to challenge 9 me today. 10 JAMES CALVIN: I just did. 11 SENATOR HANNON: Well, we'll let that be 12 settled. 13 I'm going to call this to an end. 14 I would suggest you gentlemen, and anybody 15 else who's raised this, about the questions about 16 the efficacy of e-cigarettes for withdrawal, and the 17 effect of e-cigarettes on secondhand smoke, that 18 they go back and read carefully the testimony 19 presented this morning, especially the testimony by 20 Dr. Hyland from Roswell, Dr. Eisenstein from 21 NYSACHO, and the very well-documented testimony from 22 the Department of Health. 23 It does not support the conclusions that you 24 have said. 25 Let me also, just one more comment about the 1 FDA. 2 Probably, in the last few years, I've had 3 more experience with the FDA than anybody else in 4 the Legislature because of different proposals in 5 regard to different ingredients, but also because of 6 something that I got into sponsoring, which was 7 calories on menu labeling. 8 And I had the statewide bill. 9 And I had the statewide bill because 10 localities started to enact their own statutes, 11 which then led people to say we have to have some 12 uniformity, which was very difficult to write a 13 statewide bill, because there were such disparate 14 elements of each of the laws. 15 And now we find the same thing happening with 16 e-cigarettes, New York, [unintelligible], people are 17 doing that. 18 So you're going to at some point say, Well, 19 wait a minute. We need a statewide bill. 20 But here's what happened to me on the menu 21 calories: 22 The industry -- the food industry said, Oh, 23 well, it's going to happen in the Affordable Care 24 Act. It's going to be a separate title. It will be 25 passed. 1 And it was passed. 2 That was four years ago. 3 To date, the FDA has been unable to issue the 4 regulations. 5 It was very clear what was being done. 6 It was very clear what they had to do. 7 They've been unable to do it. 8 I'm afraid waiting for the FDA is like 9 waiting for [unintelligible]. Maybe it never comes. 10 So, by the way, a piece of -- some details 11 I really need to say is, for the people who have 12 submitted written testimony, and I just want that to 13 be noted to go on the record: 14 NJOY, with the testimony of Richard Carmona, 15 the former associated surgeon general, you had 16 mentioned, Mr. Calvin; 17 Lorillard Tobacco; Altria Tobacco; 18 American Council on Science and Health; "NATO," 19 which is National Association of Tobacco Outlets; 20 And, an extensive memo that my staff did when 21 they met with Ms. Spike Babaian, in regard to what 22 she felt the rights of vapor sellers were. 23 So, all of those are going to be part of the 24 record, and we will be doing a report in due course, 25 but, we'll also see how this affects the legislation 1 that's pending. 2 I thank you very much. 3 The hearing is now over. 4 5 (Whereupon, at approximately 12:45 p.m., 6 the public hearing held before the New York State 7 Senate Standing Committee on Health concluded, and 8 adjourned.) 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25