Gov. Jared Polis says he doesn’t support a bipartisan bill that would ban the sale of flavored tobacco and nicotine products, including menthol cigarettes, because he prefers a local regulatory approach.
But some city and county leaders explicitly support the measure, now stalled in the legislature, and two organizations that represent local governments and fiercely defend their local-control powers, the Colorado Municipal League and Colorado Counties Inc., aren’t fighting it.
There’s another reason the Democratic governor may oppose House Bill 1064, which is aimed at reducing teen nicotine use: It would siphon as much as $25.2 million — of an expected $167.7 million — in annual tax revenue from the state’s fledgling preschool program, a signature Polis initiative.
The debate this year over House Bill 1064 highlights the outsize role the tobacco industry plays in the Colorado Capitol, where it successfully defeated efforts to increase tobacco taxes in 2016 and 2019.
In 2020, the Polis administration negotiated with tobacco giant Altria, the maker of Marlboro cigarettes, on a bill that placed a measure on the ballot to raise cigarette and tobacco taxes and enact a tax on nicotine products, including vape cartridges. The measure, Proposition EE, passed, raising millions of dollars to fund free preschool slots and helping the governor accomplish a campaign promise.
This year, House Bill 1064, which is aimed at outlawing products that critics say market to children with fruity flavors and colorful packaging, is drawing similar tobacco industry interest.
The measure is one of the most-lobbied bills before the legislature this year, with more than 140 lobbyists and lobbying firms representing more than 85 clients supporting, opposing or monitoring the measure. That’s nearly one-quarter of the entire lobbying corps.
The companies lobbying on the bill are spending big money on their efforts to shape the measure.
Altria and another tobacco giant, Reynolds American, respectively spent $149,000 and $173,000 on lobbying from July 2021 through the end of March.
The national nonprofit Campaign for Tobacco-Free Kids is leading the charge to support the bill, and has spent nearly $181,000 on lobbying through the end of March. It has 25 lobbyists and lobbying firms working on the measure.
Lawmakers have acknowledged the supercharged nature of the debate.
“This bill has probably been lobbied more than any other bill that I’ve seen in my four years here at the state Capitol,” Republican Rep. Matt Soper, of Delta, said during a committee hearing in March.
Others say the fight highlights the folly of trying to fund essential services with sin taxes, which are often meant to discourage a certain behavior.
“It’s not hard to see that that’s on a collision course,” said Rep. Marc Snyder, a Manitou Springs Democrat. “The more successful you are at accomplishing the social and health policy, the less revenue you have.”
Local control “in the eye of the beholder”
The governor declined to answer repeated questions from the Colorado Sun about whether he is worried the measure will slash preschool funding generated by Proposition EE.
Polis has a hard time seeing how a statewide approach to regulating flavored tobacco and nicotine products makes sense, spokesman Conor Cahill said, noting that the governor signed legislation in recent years giving local governments regulatory authority over tobacco products.
“As a general philosophy, the governor prefers local control because our local governments are closest to the people they represent and can weigh the pros and cons and determine how to best address these kinds of issues in their area,” Cahill said in a written statement.
Colorado counties believe they lack the legal authority to pass flavor bans, though a few have increased taxes on the products as a way to try to discourage their use.
Additionally, some mayors say the local efforts have limited effect.
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“They’re just not working,” Edgewater Mayor John Beltrone told lawmakers of local ordinances. “Our high school — Jefferson High — is two blocks away from a smoke shop in Lakewood that doesn’t have these restrictions.”
Denver Mayor Michael Hancock vetoed a flavor-ban ordinance passed by the Denver City Council last year, in part because he believed state action would be more effective.
“It is not a prohibitive enough barrier if our youth are simply able to travel across Denver’s border to the nearest convenience store and obtain flavored tobacco products,” Hancock wrote in a letter issuing his veto.
Kevin Bommer, executive director of the Colorado Municipal League, said the group’s members are split; some support the bill while others don’t want to be told what businesses they can have in their community, referencing concerns from vape shops who say the bill would put them out of business.
Some three dozen Colorado municipalities have adopted regulations on youth access to vaping products that are less restrictive than a ban, according to the Rocky Mountain Smoke Free Alliance, an association that represents about 125 small Colorado vape stores.
Those policies include only selling vaping products in age-restricted stores or imposing stiff penalties on those caught selling to minors, said Joe Miklosi, a former state lawmaker lobbying for the association, which opposes the bill.
The governor’s concern about local control is “a curious position, actually,” Bommer said, citing Polis’ “unwillingness to support local control on building codes and sales taxes.”
“I guess local control is in the eye of the beholder,” he said.
Health officials say the products pose health risks
Health officials say flavored tobacco and nicotine products pose a serious public health risk, especially for children of color and those with low socioeconomic backgrounds.
Alarm about the flavored products dates back to at least 2018, when the U.S. Surgeon General said there was an epidemic of e-cigarette use among young people, fueled by “new types of e-cigarettes that have recently entered the market.” Soon after, there was an outbreak of severe lung injuries tied to vaping products containing THC.
The U.S. Food and Drug Administration has tightened regulations on flavored nicotine products but some manufacturers switched to synthetic nicotine to evade the added scrutiny. The omnibus spending bill passed by Congress earlier this year would close that loophole, and leave manufacturers with 30 days to ask the FDA to continue selling their products.
At Girls Athletic Leadership Schools in Denver, school officials have caught pre-teens with vaping devices that look like mascara wands or have fruity flavors like pineapple, said Carol Bowar, the school’s executive director. The products are more discreet than smoking marijuana or a cigarette, she said, and students caught with the products tell school officials they are able to buy them without being carded.
“It’s a really deadly, addictive substance that’s disguised as something benign. And that is what’s troubling,” Bowar said.
Nicotine is particularly addictive for preteens and teenagers whose brains are still developing, said pediatrician Anne Shelton, a member of the Colorado Chapter of the American Academy of Pediatrics. That group supports the legislation.
Nearly 30% of Colorado high school students used vapes, e-cigarettes and similar products in 2019, according to data from the Centers for Disease Control and Prevention. Among young adults who use tobacco, more than 80% started with flavored products, according to a study by the Food and Drug Administration and the National Institutes of Health.
But vape stores and tobacco companies say the legislation would destroy their businesses and drive kids to buy the products online, in other states or on the black market. Adults also told lawmakers they were able to quit smoking thanks to the flavored products; more than a third of Colorado adults said they used e-cigarettes as an aid to quit or reduce smoking, according to a state analysis.
Some small vape shops also say they are being unfairly maligned, and argue the practices of Big Tobacco companies have given the entire industry a bad name.
Monica Vondruska and her husband opened their first vape shop nine years ago in Denver, in part hoping to help Vondruska’s husband quit smoking cigarettes. Their shops only allow customers over age 21, and their products have a lower nicotine content than products like Juul. Vondruska spent $1,200 on age verification systems — ID scanners — a few years back hoping to protect employees and the stores from accusations that they were selling to anyone underage.
The shops’ average customer is 42 years old, Vondruska said. About 99% of their inventory is flavored. She refuses to sell products made by Altria and other tobacco giants.
“They’re the bad players. They’re the ones that introduced Juul,” she said of Altria, which has a stake in the embattled e-cigarette company Juul Labs Inc. “They’re the ones pushing to the minor market.”
Spokesmen for Altria and Reynolds said they oppose the proposed ban because it could create unregulated markets and leave adult smokers with fewer options beyond cigarettes.
“We agree with Colorado’s legislature that youth should never vape or smoke, but (House Bill 1064) would have the unintended consequences,” a Reynolds spokesman said.
“As the latest CDC/FDA National Youth Tobacco Survey data showed, high school and middle school students’ use (in the last 30 days) of any tobacco product, including e-cigarettes, had the lowest prevalence in at least a decade,” David Sutton, an Altria spokesman said.
Reynolds has six people and two firms lobbying against House Bill 1064. Its e-cigarette, Vuse, does not use synthetic nicotine and has pulled its fruit-flavored products from the market. Juul, which also stopped selling fruit-flavored products, has four people and one firm lobbying in opposition to the bill.
Bills banning flavored products are among the biggest threats tobacco companies face right now, said Stanton Glantz, founding director of the University of California San Francisco Center for Tobacco Control Research and Education.
The industry spent at least $12 million, for example, fighting an ordinance to ban all flavored tobacco products in San Francisco, a city with a population around 874,000. R.J. Reynolds ran ads in multiple languages against the measure, comparing it to Prohibition, the New York Times reported.
“They have a ton of money and they’re very aggressive and the stakes are very high for them,” said Glantz, who has advocated against the tobacco industry. “They’re fighting like mad everywhere, but they’re generally failing.”
Colorado Sun staff writer Sandra Fish contributed to this report.