Despite decades of evidence that banning consumer products incentivizes illicit sales by unvetted vendors, lawmakers in Nebraska and Oregon are considering legislation to ban flavored electronic delivery system (ENDS) products.  Since 2020, the Council for Citizens Against Government Waste (CCAGW) has successfully defeated such bans in Maine, Oregon, and Vermont, arguing in part that the prohibition, which would allow only non-flavored ENDS products to be sold, would have made it more difficult for smokers to quit. 

California, Massachusetts, New Jersey, New York, Rhode Island, Utah, and the District of Columbia, have banned categories of flavored nicotine products.  The evidence so far shows that these bans have not worked.  A 2022 Preventive Medicine article noted that flavor bans are premised on “the idea that youth e-cigarette use will re-normalize cigarette use, leading to increased rates of cigarette smoking among underage individuals.”  The data on youth use, however, “demonstrate … that this thinking is unsupported.”  The authors concluded that “restrictions on e-cigarette use can lead to adult and youth cigarette use.  Policies should reflect the true relationship in order to reduce smoking rates.”  Any public policy that renders these tobacco harm reduction (THR) products less appealing will discourage smokers from switching and impede the decline in smoking and its myriad detrimental health consequences.  A 2023 study analyzing users’ behavior in three states that banned these products found that after the ban, 50.8 percent of respondents continued to use illicit flavored products.  

A study based on a Behavioral Risk Factor Surveillance System published in the Journal of the American Medical Association on January 24, 2025, found that though state bans reduced vaping rates among users aged 18 to 29 by 3.6 percent, the majority of these users switched to combustible cigarettes.  The states that enacted flavor bans saw a 2.2 percent increase in the rate of daily smoking from 2018 to 2023 compared to states with no ban.

On November 27, 2019, Massachusetts became the first state to permanently ban the sale of all flavored e-vapor products.  The state lost an estimated $114 million in excise tax revenue, but Massachusetts’ loss was New Hampshire’s gain.  The Granite State saw a 22 percent increase in sales.  Together, sales of banned products in New England have remained roughly constant, with declines in Massachusetts matched by growth in neighboring states.  The flavor ban not only failed to reduce consumer demand but instead increased illegal and unregulated sales, which put consumers of all ages at risk of contaminated products.  On April 3, 2024, Vermont Governor Phil Scott vetoed S. 18, which would have banned the sale of flavored THR products because, “from a purely practical point of view,” he explained, “these products would continue to be widely available just across the river in New Hampshire, and through online sales.”

Bans that shift consumer demand for ENDS products either to neighboring states or into unsafe black markets not only fail at their own objective of eliminating flavored nicotine products, they also threaten to roll back historic declines in both youth and adult cigarette smoking.  Legislators in Nebraska and Oregon considering ban bills can choose to keep the industry regulated to guard against dangerous contaminants from unapproved foreign sources, or they can choose to shunt these products into black market channels that make no attempt at age verification, product safety, or tax collection.