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Delaware lawmakers draft bill banning flavored e-cigs, vape shops plan fight back

Meredith Newman
The News Journal

Delaware lawmakers plan to introduce legislation to ban the flavored liquids used in e-cigarettes and other vape products, amid the outbreak of lung illnesses associated with e-cigarettes throughout the country. 

A coalition of Delaware vape shop owners says this legislation would bankrupt their businesses, drive customers back to traditional cigarettes and, with the rise of an internet black market, do little to stop people from vaping. 

Rep. Krista Griffith, D- Fairfax, said she and other lawmakers are writing a bill that will be introduced when the General Assembly returns in January. She named Rep. Debra Heffernan, D-Bellefonte, as the primary sponsor.

Flavored e-liquids line the shelves at Vape Escape in Wilmington.

Griffith said this bill would help deter young people from using e-cigarettes, which she believes are being specifically marketed to younger generations. This spring, Delaware passed legislation that increased the legal purchasing age of all tobacco products, including e-cigarettes, from age 18 to 21, for similar reasons. 

Delaware health department officials say there have been six probable cases of vaping-related lung illnesses in the state. They affected people between the ages of 15 and 45. There are no confirmed cases. 

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Elsewhere, the Centers for Disease Control and Prevention has confirmed at least 805 cases of lung injury in the country and 12 deaths. Two-third of the cases involve young people — particularly men — between the ages of 18 and 34 years old, and all of the reported patients have had a history of using e-cigarette or vape products.

States like Massachusetts, Michigan, New York and Rhode Island have taken steps to ban or limit the sale of e-cigarettes and vaping products. Illinois and New Jersey are considering similar policies. 

The Trump administration said earlier this month that it would also look to ban the sale of many flavored e-cigarettes. 

E-cigarettes sit inside a case at Vape Escape in Wilmington.

Griffith said this is an issue Delaware can not ignore.

"The last thing I want to do," Griffith said, "is visit a constituent in the hospital ... who's been stricken with serious lung illness because of the use of vaping and vaping related products."

The Vapor Retailers and Manufacturers of Delaware, which includes about five vape shop owners, has hired lobbyist Kate Cowperthwait to prepare for a potential legislative fight.

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The coalition's president, Brendan Styles, said members are reaching out to their local representatives to educate lawmakers about their business, specifically how the different products are made and how they help many former cigarette smokers.

Styles believes young people choose to smoke e-cigarettes because of the nicotine buzz that can come from it — not because of the flavors. Adults who smoked cigarettes for years, however, are incentivized to use e-cigarettes and vape because the flavors are available, he said. 

"We could make the flavors pine cones and mothballs," Styles said, "and they would still use it to get the buzz."

Cowperthwait said the coalition wants to get all parties talking to each other and crafting legislation together.

A majority of the vape shops in Delaware are small businesses, she said.  

"We're all united that we don't want children vaping," Cowperthwait said. 

The owners say they are not against regulation: Some have suggested a federal ban on the internet sales of vaping products to avoid the purchase of contaminated products in a booming black market. Others have said selling e-cigarettes and vapes should be banned in convenience stores, just like alcohol. 

Dr. Karyl Rattay, director of the Division of Public Health, has called the rising number of lung illnesses associated with vaping "incredibly alarming."

Of the six probable cases in Delaware, five are New Castle County residents and one is a Kent County resident, health officials said. Four of the six are men. 

“We strongly encourage individuals, especially youth, to avoid using e-cigarette products," she said earlier this month. "I cannot stress this point strongly enough – these illnesses can be life-threatening.”

While federal and state investigators are looking into all substances used in e-cigarettes, they are specifically focusing on those containing contaminated tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana. 

As vaping has become more popular in recent years, so has the online black market that has sold faulty and contaminated products. Police in Arizona, for example, have seized hundreds of thousands of dollars worth of illegal THC vape cartridges. Those cartridges have been connected to some of the vaping illnesses in Illinois and Wisconsin

Delaware vape shop owners like Scott Nizborski, of Vape Escape in Brandywine Hundred, believe people are getting sick because they are buying contaminated or knock-off products. 

Nizborski stopped selling Juul products — a popular e-cigarette company that has come under fire in recent months — months ago because he was alarmed by the number of young people who were buying them.

Unlike a vast majority of his clients, they weren't smokers looking to quit cigarettes, he said. The young people wanted to get the "nicotine high," he said.  

"If you don't smoke," Nizborski warned, "don't start vaping," 

Vape Escape owner Scott Nizborski stands for a portrait in his store in Wilmington Wednesday, Sept. 25, 2019. Nizborski says if flavored e-liquids were banned both of his vape shops would have to close.

Nizborski said 90% of his business involves selling flavored vape products, which he described as a "critical lifeline" to smokers. If a ban was imposed, it would leave mint and tobacco flavored products. Nizborski said this could drive his customers back to cigarettes.  

If the suggested legislation passed, he said, it could "sink my business overnight." In the past month, he said sales have been down 40%. 

Nizborski and Styles, the operations manager of Delaware Vapor, believe e-cigarettes and vape products should be handled in a similar way to alcohol. Nizborski said he would support the idea of vape shop owners needing a license in order to run their business. 

Styles believes the vaping industry is held to a double standard. If lawmakers believe strawberry flavored e-cigarettes are targeted specifically for teens, for example, what about strawberry flavored liquor, Styles asked. 

But Griffith, the state representative, disagreed with this comparison.

"I'm not going to go down this road of comparing it to alcohol, like strawberry margarita flavors," she said. "People are inhaling products into their body. I think it's different from someone taking a drink."

Griffith said she plans to listen to vape shop owners and their concerns, particularly how this will affect local businesses and jobs. There are also questions about how this will affect the tax revenue the state receives from vape products.

Public health is a bigger concern, Griffith said, than tax revenue.

Nizborski has already taken steps in his Brandywine Hundred store to inform customers about how they can advocate against a potential ban. When clients walk into the store, there's information at the front counter about how to contact the Trump administration and their local state representatives.

He also installed an electronic moving sign on the front of his business spreading the world.

"Call your state rep," the sign reads. "Fight the flavor ban."

Contact Meredith Newman at (302) 324-2386 or mnewman@delawareonline.com and on Twitter @MereNewman.