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The effort to ban flavored vaping products, menthol cigarettes in Colorado now has a big asterisk

Menthol cigarettes, which would have been banned under the original legislation, account for more than 20% of cigarette sales in Colorado. Outlawing them would have been an enormous tax revenue hit

Juul products are displayed at a smoke shop in New York on Dec. 20, 2018. After a crackdown by the Food and Drug Administration in 2018, Juul discontinued flavors that were seen as marketed to teens. (Seth Wenig, The Associated Press)
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Democratic state lawmakers set out this year to pass a bill banning the sale of all flavored vaping and nicotine products in Colorado, including menthol cigarettes and wintergreen smokeless tobacco, as a way to curb teen use.

They won’t get it done. 

On Tuesday, House Bill 1319 — which sought to impose the blanket ban — was amended to allow age-restricted businesses, ones that must verify that anyone who enters is 21 or older, to continue selling those products. 

The amendment would allow most vape shops and Smoker Friendly locations across the state to keep selling flavored tobacco products. However, grocery and convenience stores, would be banned from peddling them. (Liquor stores are seeking guidance from lawmakers are where they fall.)

Why make the change? The original version of House Bill 1319 would have reduced state tax revenues by nearly $40 million, according to an estimate from legislative fiscal analysts. That money, which goes toward health care programs, would have needed to be backfilled from a shrinking state budget, likely meaning cuts to other initiatives. 

It turns out that more than 20% of cigarette sales in Colorado are menthols, making them a  cash-cow for state tax revenues. 

“The impact to tax revenue was going to be really considerable,” said state Rep. Yadira Caraveo, a Thornton Democrat who is leading the push for the measure. 

The hope is that by still allowing some stores to sell flavored tobacco products, the measure’s impact on the state budget can be reduced. The bill passed out of the House Health and Insurance Committee Tuesday on a 7-3, party-line vote.

State Rep. Yadira Caraveo, a Thornton Democrat, speaks at a news conference Wednesday, April 24, 2019, announcing a nicotine tax ballot question proposal. (Jesse Paul, The Colorado Sun)

Caraveo said she’s now confident about the bill’s chances for passage. She said lobbying by tobacco retailers didn’t play a huge role in the amendment, but that the impact to the state budget threatened the legislation’s passage. 

“I think we’re much more confident about this option compared to others because it keeps these businesses open while still trying to address youth use,” she said, noting that some Democratic lawmakers have expressed concern about how the measure would affect small-business owners.

The bill also imposes fines on noncompliant businesses. A companion measure, House Bill 1001, aims to license stores that sell tobacco products and enact policies on how to enforce the new tobacco-purchasing age of 21.

Together, proponents are hopeful the measures will have a major impact in keeping tobacco and nicotine products out of the hands of kids are start to chip away at the state’s alarming rates of teen vaping.

But not everyone is in favor of the legislation.

Grier Bailey, who leads the Colorado Wyoming Petroleum Marketers and Convenience Store Association, said House Bill 1319 represents an economic hardship for the thousands of store owners he represents. 

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“They’re basically saying that because kids are attracted to vaping flavors, Skittles and cotton candy, the industry has to lose all sales of flavored products,” he said. “The state is coming in and basically taking away the opportunity to sell products that adults may want.”

Bailey said his organization supports policies aimed at limiting teen vaping. But he doesn’t see how blocking adults from buying menthol cigarettes and wintergreen Copenhagen dip fits in. 

The cigarette and vaping display at a convenience store in Denver’s Capitol Hill neighborhood on April 30, 2019. (Eric Lubbers, The Colorado Sun)

He also doubts the tax-revenue impact will be improved by the amendment since such a narrow pool of businesses will be allowed to sell the products if the legislation passes. 

Gov. Jared Polis could be a hurdle for the legislation. He has signaled that he doesn’t approve measures that could limit what products adults can purchase and consume. 

The bill is also sponsored by House Speaker KC Becker, a Boulder Democrat, giving it a dose of political clout. In the Colorado Senate, leading the push are Republican Sen. Kevin Priola of Henderson and Sen. Rhonda Fields, a Democrat from Aurora. 

If passed by the legislature and signed by Polis, House Bill 1319 would go into effect on Sept. 1.


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