ALBANY, N.Y. (AP) — New York officials want to add menthol to the state's first-in-the-nation ban on the sale of flavored e-cigarettes as the vaping industry seeks to block it, according to the governor's office.
Democratic Gov. Andrew Cuomo said he's directing his administration to take steps to include menthol in a ban that currently excludes tobacco and menthol flavors. The state health commissioner could hold an emergency meeting as soon as next week to update the ban, according to Cuomo's office.
The vaping industry's trade group and two New York vaping companies aim to block the ban with a lawsuit filed Tuesday in state court.
Similar bans in New York, Michigan and Rhode Island come as health officials investigate severe breathing illnesses linked to vaping. Cuomo proposed the emergency ban citing surging use among young people.
The Centers for Disease Control and Prevention says more than 500 confirmed and probable cases of lung illnesses and nine deaths nationwide have been attributed to vaping.
The CDC has not identified a common product or ingredient responsible for the illnesses. Many patients reported vaping THC from marijuana, though health officials have cautioned that some said they only vaped nicotine.
New York's prohibition covers flavored e-cigarettes and other vaping products except for menthol and tobacco flavors. Retailers also face a looming deadline to remove merchandise from store shelves.
The executive director of the Vapor Technology Association, which represents manufacturers, wholesalers and retailers of vaping products, said New York's ban unfairly targets former smokers who say they rely on flavors while failing to address marketing to youth.
"Bans are prohibitions and they lead to people reverting to smoking or a black market," Executive Director Tony Abboud said. "But an actual policy discussion about limiting marketing is something we've been trying to have with regulators and laid out a plan for."
Abboud said instead of banning flavors, his group would support banning the use of kid-friendly names and marketing for tobacco flavors.
Amid scrutiny over sugary flavors, such proponents have also argued that menthol in particular helps smokers quit. The Food and Drug Administration banned flavored cigarettes except menthol in 2009.
But the Cuomo administration's move toward nixing menthol flavored e-cigarettes comes as anti-tobacco and -vaping groups argue there's no scientific basis for leaving menthol or mint alone.
Last November, the Food and Drug Administration announced plans for a crackdown that could lead to federal regulators pulling all e-cigarette flavors besides menthol and mint from shelves.
But anti-tobacco groups and health experts warn menthol has been unethically marketed toward African Americans, and that such flavors can still increase the appeal of e-cigarettes for young people who aren't smokers by overcoming the harshness of nicotine.
"The tobacco industry has a long history of targeting the African American community with its menthol products, and exempting menthol would allow this predatory practice to continue," said American Cancer Society Cancer Action Network (ACS CAN) Senior New York Government Relations Director Julie Hart in a statement.
Meanwhile, Trump has promised a ban on flavored e-cigarettes — which would supersede any state inaction — that includes a prohibition on mint and menthol. The FDA has also said it would seek to ban menthol cigarettes.
The Associated Press has reported that proponents of vaping, including tobacco companies and the Vapor Technology Association, have spent tens of thousands of dollars to successfully fight proposed flavor bans in state legislatures this year. Convenience store owners who say flavored e-cigarettes bring in customers have also opposed such efforts.
Some states such as New York instead passed laws to raise the tobacco age.
The vaping industry's trade group is now prepared to go to court to fight flavor bans announced by governors in other states, Abboud said. In Michigan, the owner of a vape shop sued Wednesday to halt that state's ban on flavored e-cigarettes.
In response to the lawsuit, Cuomo's senior adviser Rich Azzopardi said that the children's future is at stake.
"Bring it on," he said.