A bill to ban flavored tobacco in the state faces uncertain future

Along with a packed legislative calendar, there’s another wrinkle: Universal pre-K
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Posted at 5:43 PM, Apr 29, 2022

DENVER — A bill to ban the sale of flavored tobacco products in the state faces an uncertain future in the legislature.

House Bill 22-1064 was one of the first introduced this legislative session. It calls for a ban on the sale of flavors like fruit, mint, candy, spice and menthol. The goal is to bring down youth vaping rates in the state.

“A whole generation of kids have become addicted to these products through these flavors like cotton candy, unicorn poop. You can't tell me that you're not marketing to kids, when you look at these flavors, and that's where we're going to put a stop to,” said Rep. Kyle Mullica, a Democrat and the bill’s prime sponsor.

About half a dozen cities including Boulder and Aspen have already moved to ban flavored nicotine within their jurisdictions. Toward the end of 2021, the city of Denver tried to make a similar move.

However, Mayor Michael Hancock vetoed the bill, saying that he believed this should be a state approach and not a patchwork of local ordinances. Now, state lawmakers are taking their turn to debate flavored tobacco products.

The bill has sponsors from both political parties. It is far from bipartisan, however, facing strong opposition from Republicans, some Democrats and businesses. It is also facing strong lobbying efforts behind the scenes.

“It’s the most lobbying I've ever seen on an issue,” Mullica said. “These are some very wealthy and powerful industries that have been able to hire some, some good representatives here in this building.”

The lobby efforts include major national brands like Kum & Go, 7-Eleven and JUUL, among others.

Since it was introduced in January, it passed a couple of House committees but has more or less stalled out in the legislature.
Now, with just 12 days left in the session, the fate of the bill is uncertain. Along with a packed legislative calendar, there’s another wrinkle to the proposed flavor tobacco ban: Universal pre-K.

This week, Governor Jared Polis signed bill into law giving 4-year-old Colorado children access to 10 hours of preschool a week at no cost to families starting next fall.

The hitch is that the program would be primarily funded by a tax on tobacco products.

“That bill represents $55 million worth of revenue to the state, and the governor is going to have to make a really hard choice between a bill that bans flavored nicotine products and his early childhood department,” said Republican Rep. Hugh McKean, the House Minority Leader.

A fiscal analysis predicts that the bill could cost the state $15.6 million in the 2023-24 fiscal year and another $31 million the follow year.

“We can’t keep writing checks out. There has to be a choice made. And so, it's either pre-K and you find a new revenue source for it, or pre-K and you don't and flavor ban doesn't go forward,” McKean said.

McKean sees this as more of a local control issue; he wants individual cities to be able to determine what’s best for them without state interference. It’s one of the few areas he and Polis see eye to eye.

The governor has also expressed opposition to the bill, though he insists it’s not because of what the bill will mean for his universal pre-k plan.

“As a general philosophy the Governor prefers local control because our local governments are closest to the people they represent, and can determine whether additional regulations are warranted above and beyond what the state requires. He does not support the bill as written, and prefers to allow the local control laws he’s previously signed to determine if future state level regulations are even needed,” a spokesperson said in a statement sent to Denver7.

Mullica acknowledges that there will be a fiscal impact to pre-K, but he doesn’t think it will be as much as the fiscal analysis predicts since not everyone will give up smoking.

Despite opposition from Republicans, industry and even some in his own party, he still believes that the bill has a chance, and he says this isn’t the first time he’s gone up against the governor for something he believes in.

“We all recognize that he does have some concerns with the bill, but we're more than willing to sit down with him and try to find the solutions,” he said.

Mullica doesn’t like the idea of funding education off of so-called "sin taxes," but he says he respects the will of the voters. However, he doesn’t buy the Republican argument that the choice is either funding universal pre-K or banning flavored tobacco.

“The health of our kids is not worth universal preschool funding. We can figure out the monetary pieces of this,” Mullica said. “We can do both.”

As an emergency room nurse and an uncle of a teen who ended up in the ER recently because of vaping, Mullica insists that this issue that simply cannot wait for the sake of public health.

While the state debates its role in whether to ban flavored tobacco, the federal government is also stepping in.

On Thursday, the Food and Drug Administration proposed a rule to prohibit the sale of menthol flavored tobacco products.

The FDA found that a potential ban could significantly reduce disease and death from tobacco use, which is the leading cause of preventable death in country.

African Americans and other racial and ethnic groups make up the majority of menthol users.

“The proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities,” said Health and Human Services Secretary Xavier Becerra in a news release.

The federal government’s action makes the fate of the state bill all the more uncertain. What isn’t uncertain, though, is that lawmakers have 12 days to figure out whether they want to move forward with the policy or kill the bill like they did with a similar proposal two years ago.