by Tom Farley
A week later Mayor Bloomberg held a press conference at Queens Hospital to showcase our two bills. Several people buttressed him, including Matt Myers, the executive director for the national antismoking advocacy group Campaign for Tobacco-Free Kids, and Jim Gennaro. While the mayor gave equal time to the two bills, the reporters chose to focus on the one that hid cigarette packs. “We know out of sight doesn’t always mean out of mind, but in many cases, it can,” said Bloomberg. “We think this will help reduce impulse purchases, and if it does, it will literally save lives.”
The tobacco companies were primed for this fight. A year earlier, the small town of Haverstraw, New York, had passed a tobacco product display ban; the corporations had quickly hit them with a lawsuit, brandishing the First Amendment’s guarantee of free speech. Facing an army of tobacco lawyers, the town immediately folded, repealing the law. In their press statements, the tobacco companies now hinted that they would come after us in the same way. The bodega owners chimed in. “Where will it end?” said Bodega Association of the United States head Ramon Murphy. “Today it is cigarettes. Tomorrow it’s soda. The next day it’s chips. The following day it’s sugar, and then ice cream. Before you know it, there are no bodegas left.”
After Gennaro made his suggestion, Susan Kansagra looked into raising the tobacco sales age to nineteen and came back lukewarm. The one-year increase would do little to cut smoking in eighteen-year-olds or younger teens, because many would get their nineteen-year-old friends to buy cigarettes for them. We had invested years in our other two tobacco bills. Those had to come first.
Then Howard Wolfson called to ask what I thought about raising the legal sales age to twenty-one. Now Speaker Quinn’s staff was asking. Age twenty-one was a very different question. Anyone over twenty-one was out of high school and was less likely to mingle with teens eighteen or younger. A study had found that 90 percent of people asked by teens to buy them cigarettes were under twenty-one. No states or big cities in the United States had raised their sales age to twenty-one, but a group of researchers had estimated that the law could immediately cut smoking rates in kids between fourteen and seventeen by two-thirds, and over fifty years cut smoking in adults by 30 percent.
We had a precedent arguing for the idea: when states raised the sales age for alcohol from eighteen to twenty-one, they saw big declines in drinking among high school seniors. A sales age of twenty-one would bring cigarettes in line with booze, making it easier to enforce the sale age of both. Later Vicki Grimshaw uncovered a statistical gem. In 2005 the small town of Needham, Massachusetts, had raised its tobacco sales age to twenty-one. From 2006 to 2012, smoking rates among Needham’s high school students plummeted from 12.9 to 5.5 percent, a faster drop and to a lower point than had happened either in neighboring Massachusetts towns or in New York City. Seeing that, we told Quinn’s staff that we wholeheartedly supported the idea.
In April 2013, Jim Gennaro and Christine Quinn came out with their age-twenty-one sales proposal. Reporters tracking the mayoral race saw political maneuvering. The Times reported that “by proposing the legislation, Ms. Quinn . . . appeared to be positioning herself to follow in [Bloomberg’s] footsteps as a mayor who would make public health a priority.” Quinn made it clear that she was jumping in with both feet. Soon afterward she persuaded state legislators in New Jersey, New York State, and Connecticut to introduce their own age-twenty-one bills.
• • •
In early May, the elegant City Council chambers were under renovation, so the health committee held its hearing in a drab office building across the street from City Hall. The committee would listen to testimony about three tobacco bills: the ban on displaying cigarette packs, the ban on discounting, and the age-twenty-one sales rule. As the hearing began, Christine Quinn dropped by to let the other council members know exactly where she stood. “There are few opportunities you have in life or in government to do something that you literally know will save lives,” she said. “That is what we are talking about today.”
Supporters and opponents overflowed the cramped room, lining the hallway. On the health side, organized by Susan Kansagra’s team, were the usual antismoking advocacy organizations, the CEO of Memorial Sloan Kettering Cancer Center, professors who studied tobacco marketing, Marie (the star of our antismoking subway ads), and a representative of Price Chopper, a grocery chain that had voluntarily hidden its cigarette packs. On the other side was the retail end of the tobacco industry: grocery stores, bodegas, gas stations, and newsstands. Hiding the packs, of course, would damage an industry and kill jobs. “This is a joke,” said David Schwartz of the New York Association of Grocery Stores. “This is an attack on small business. This is an assault on our grocery stores.” Even though they were selling a killer drug, they presented themselves as upstanding community members. “There are millions of illegal cartons of cigarettes being sold in New York every day, and they are not being sold in stores,” said Robert Bookman of the NYC Newsstand Operators Association. “They are being sold on the street. They are being sold from shopping bags. . . . They are being sold from trunks of cars. These bills do nothing to attack the tsunami of illegal cigarettes out there.”
None of that surprised us. But just before the hearing, I was puzzled to see a small cluster of people carrying handwritten posters about “vaping.” What’s that about? I asked Kevin Schroth. They’re advocates for electronic cigarettes, he said, upset because in drafting the bills, he had changed the definition of “tobacco product.” A possible unintended effect of that, which he hadn’t recognized until just before the hearing, was that the bill would ban the sale of flavored e-cigarettes.
After my testimony, one of the first questions the health committee chair asked me was what effect the bills would have on e-cigarettes. I was still confused. “The bills were written with no intention of addressing electronic cigarettes at all,” I said, hesitating. “If that is a concern of the council, I think that that is something that we can address in a subsequent conversation.” Still, the e-cigarette advocates were determined to defend them. As the hearing, which started at 1:30 p.m., dragged on into the evening hours, a parade of “vapers” came to the witness table to implore the few remaining council members. “I quit smoking after eighteen years from an electronic cigarette,” said Keith Mortener. “It saved my life I feel. It saved my mother’s life and many people I know.”
With Quinn’s strong-arming, the few City Council members who sat through the hearing made the right noises about our three bills. After years of planning and months of preparation, we sensed victory. But the questions about e-cigarettes, which we saw as a minor glitch, later put them all at risk.
• • •
The epidemiologists were—only half-jokingly—calling it the “Mad Men effect.” I was calling it a disaster. Even a year later, Susan Kansagra told me, “It keeps me up at night.”
In the summer of 2013 we got the results of the 2012 telephone survey, and the smoking rate was 15.5 percent. That was up from 14.8 percent the year before, which was itself above the 14.0 percent in 2010 that Mayor Bloomberg had announced in his victory press conference. The 2012 number translated to an increase of 100,000 smokers in those two years.
The rising numbers could have been random noise in the surveys. But they followed eight years of consistent falls that amounted to 450,000 fewer smokers. Any increase after that represented a tragic reversal. At best, the quitters in New York City were matched by those picking up the deadly habit, and at worst, they were swamped by a surge of new smokers.
More than the increase itself, what struck the epidemiologists were the demographics of the new smokers. The greatest rises were among whites, males, those ages twenty-four to forty-four, those with a college education, and those in the highest income group. That was another radical change, because over the decades smoking had previously shifted to poor, less-educated people.
I was as distraught as I had been during my entire time on the job. Both Tom Frieden and I had
called smoking public health enemy number one. The annual drops in smoking for nearly a decade had been the health department’s greatest achievement. We had kept up the effort. What could be going wrong?
Some answers were right in front of us. The cigarette taxes were stale; after a price shock prompts many smokers to quit, others adjust. The tobacco companies were stringing some smokers along with discount coupons, and the cigarette smugglers trucking in cartons from Virginia were holding down the actual retail price. City budget cuts that followed the financial crash of 2008 had also hurt us: in 2006 we had spent over $8 million on antismoking ads, but between 2010 and 2012 we had cut back to $5.5 million a year. Over the same time, the state health department had sliced its own antismoking ad buys roughly in half for the same reason. With fewer ads on television, the number of people calling the Quitline was down from about 150,000 to about 100,000 a year.
But something else was happening. New Yorkers were changing the way they smoked. In 1980 the average smoker went through a pack and a half a day; now nearly 40 percent of smokers in New York City didn’t light a single cigarette on any given day. These “nondailies” didn’t even consider themselves smokers.
The wildly successful television series Mad Men, which began in 2007, was billed by AMC as a “sexy, stylized, and provocative” drama that “follows the lives of the ruthlessly competitive men and women of Madison Avenue advertising” in the 1960s. Throughout nearly every scene, the hyperaggressive men—almost all of whom are white, educated, wealthy, and attractive—smoke.
Watching actors smoke in movies, the surgeon general has said, causes young people to start smoking. That conclusion came from various studies. In one of the best, researchers repeatedly surveyed more than 2,000 children aged nine to twelve, who had never before experimented with smoking, about the movies they had seen. The researchers then watched those movies and counted the scenes in which the actors smoked. Over five years, the more smoking scenes the children watched, the more likely they were to try cigarettes, even after taking into account whether their parents or friends smoked. The researchers projected that the number of children trying cigarettes would fall by one-third if none of them watched smoking on screen.
The invention of on-demand television now had Americans watching series like Mad Men—which was effectively a steady stream of cigarette ads—instead of broadcast cop dramas. I suspected, but couldn’t prove, that those series were giving New Yorkers a much heavier dose of alluring smoking images. Maybe those images were causing higher-income, educated people to take up “social smoking.”
Smoking a few cigarettes a week isn’t nearly as dangerous as smoking a pack a day, but it can still be fatal. Shows like Mad Men might not have been the only factor behind the distressing survey numbers. But it was painfully clear that in response to our antismoking program, the tobacco companies were adapting somehow. The war against the cigarette sellers would never end. We needed to rethink our strategy quickly, as they had rethought theirs. If we didn’t, smoking could come roaring back.
At the health department, we couldn’t rewrite television shows. Susan Kansagra came up with a plan for what we actually could do. We should find the money to counter the Mad Men–like images with antismoking ads, ones that resonated with light smokers and nondaily smokers. We should crack down on bodegas that sold cheap bootleg cigarettes. And we absolutely had to get the City Council to pass the three bills restricting cigarette marketing in retail stores.
• • •
As the summer of 2013 dragged on, though, and the election approached, Christine Quinn’s office repeatedly delayed the vote on the three bills. During those delays, the bills came under threat not from politicians but from the antismoking advocates.
Under Quinn’s iron hand, the City Council had looked favorably on all three. We wanted only to nail down the victories. But after the American Heart Association, the American Lung Association, the American Cancer Society, and the Campaign for Tobacco-Free Kids learned at the hearing that the bills might inadvertently restrict electronic cigarettes, they perked up and decided that the bills should do just that.
Kevin Schroth guessed that the antismoking groups were panicked by recent announcements by both R.J. Reynolds and Philip Morris that they were jumping into the e-cigarette business. Soon all three big tobacco companies would be marketing e-cigarettes heavily. Everything the tobacco corporations did had to be countered, the advocates’ reasoning went, so if the tobacco companies were putting billions behind e-cigarettes, then health people had to do whatever it took to thwart them.
Electronic cigarettes are devices that deliver nicotine, the drug in tobacco leaves to which smokers get addicted. They contain a cartridge filled with a liquid like propylene glycol, in which nicotine is dissolved. When a user sucks on an e-cigarette, a microprocessor heats the liquid, which sends out a puff of vapor carrying the nicotine into the user’s lungs. A pharmacist in China invented the device in 2003 and started exporting e-cigarettes a couple of years later. Soon U.S.-based entrepreneurs and investors with tech roots started up companies like NJOY and Blu to market their own versions. When those e-cigarettes started to catch on, the tobacco companies hedged their bets: Lorillard bought Blu for $135 million in 2012 before R.J. Reynolds and Philip Morris created their own brands in 2013.
In 2009 the FDA seized a shipment of NJOY’s e-cigarettes from China to the United States, calling them unapproved drug-delivery devices. NJOY and other e-cigarette companies sued, arguing that since the nicotine in e-cigarettes was derived from tobacco, they were actually like cigarettes and therefore should instead fall under the FDA’s much looser rules regulating tobacco products. In a mystifying decision, a federal judge agreed with them. His ruling left the FDA paralyzed in the short term and hampered by the federal tobacco laws in the long term. As of 2013, the FDA had done nothing to regulate the chemicals that companies put in e-cigarette cartridges. Neither the FDA nor any other federal agency prevented manufacturers from advertising e-cigarettes in any way, stores from selling them anywhere to anyone, or users from puffing on them anyplace. E-cigarettes sprouted in bodegas throughout New York City, including those without tobacco licenses.
The manufacturers advertised them in magazines, on billboards, and on television, using the tactics that cigarette manufacturers had used to advertise Kool and Marlboro forty years earlier, with celebrities and with images linking them to youth, independence, rebelliousness, and sex. In one ad, punk rocker Courtney Love, puffing at an elegant event, is approached by an older woman who tells her haughtily that she “can’t smoke in here.” Love blows vapor in the woman’s face and says with a sneer, “Relax. It’s a fuckin’ NJOY.” Blu ran an ad in the Sports Illustrated swimsuit edition with its logo applied right over the crotch of a model’s tiny bikini, with the slogan “Slim. Charged. Ready to go.” By 2012, the companies were selling $500 million worth of e-cigarettes. Wall Street analysts were predicting that sales would double in 2013 and might surpass those of tobacco cigarettes within a decade.
The e-cigarette companies profited from having it both ways. Because the FDA couldn’t regulate e-cigarettes as drugs, the companies could market them with everything from free giveaways to sales at gas stations. At the same time, although the companies couldn’t claim that e-cigarettes helped smokers quit, they could drop loud hints. “Cigarettes, you’ve met your match,” says one NJOY ad. The companies recruited vapers to say the devices helped them quit and to fight any attempt to regulate e-cigarettes; government interference, they said, would simply force them back to “combustion” cigarettes and early death.
Some legitimate public health experts thought e-cigarettes had the potential to save many lives by replacing smoking. Propylene glycol is harmless, they argued, used in many inhalers licensed by the FDA, and nicotine by itself is a safe drug—the active ingredient in the patches and gum that the health department distributes to help smokers quit. The patches and gums didn’t work for most smokers; something that d
elivered nicotine to the lungs in a way that felt like smoking might work better. If even a third of smokers were to switch from inhaling tobacco smoke to sucking on e-cigarettes, it might save tens of thousands of lives a year.
In 2013 e-cigarettes were still so new that public health officials couldn’t answer the crucial questions about their health risks. What were their long-term effects? The FDA called propylene glycol safe, but no one had ever heated it up and then breathed in the vapor for hours every day for twenty years. If young people got addicted to nicotine through e-cigarettes, would some then switch to tobacco? Would smokers use e-cigarettes not as a way to quit but as a way to avoid quitting—a “bridge” that would just tide them over during the workday? (Blu played on that, with ad copy that said, “Why Quit? Switch to Blu.”)
At the health department, we staked our reputation on following scientific evidence. Without studies on e-cigarettes, we had difficulty arguing to regulate them. But with the market exploding, City Hall would soon be crawling with e-cigarette lobbyists. Then it might be too late.
We needed to balance the possible benefits of e-cigarettes with the risks of their unfettered marketing. The closest analogy was methadone, which health agencies recommend for heroin addicts under the label “harm reduction.” Methadone is a risky and addictive drug, but it is far safer than heroin. Heroin addicts who switch to daily methadone can lead healthy, productive lives for years. But we recommend methadone only to people who are already addicted. We would never allow sales of methadone to teenagers in bodegas or the advertising of methadone on television. If e-cigarettes ever became the “harm reduction” for tobacco, they should still never be marketed to nonsmokers. But the e-cigarette manufacturers were flagrantly marketing the devices to nonsmokers, because there were so many more of them.
It made sense to include e-cigarettes in the age-twenty-one sales law. Few under-twenty-ones were fully addicted smokers, so they shouldn’t need the e-cigarettes to quit, but all of them could be easily lured into trying e-cigarettes and becoming addicted to nicotine. I couldn’t justify, though, including e-cigarettes in the pack display ban or the discount ban. How would we argue—in public, in the City Council, or in court—that this would be good for health when there were no data showing that e-cigarettes were bad?
