Superior considers policies to restrict vaping access

Mar. 6—SUPERIOR — When school district officials administered the 2023 Youth Risk Behavior Survey, 30% of Superior High School students reported they had tried vaping, and 15% reported vaping within the last 30 days.

A subsequent survey administered in November revealed only 35% of students believed flavored vapes were harmful.

"Kids sometimes feel like the flavored vapes are less harmful," said Jane Larson, Superior High School social worker. "Some say if they didn't have flavored vapes, they probably wouldn't use them at all."

In fact, 91.1% of students who responded to the November survey said they wouldn't use vapes if they didn't have flavors, Larson said.

The environment is set up to have the problems we're having," Larson said. "So how do we change that?"

The problem isn't just at the high school, said Brynn Larrabee, health coordinator for the Superior School District. While statistics weren't yet available for Superior Middle School, Larrabee said she hears about the adverse effects of vaping there more than at the high school. She said she has been at the middle school when students who had been vaping came into the nurse's office with a rapid heart rate, nausea and other symptoms.

"We've had to advise that parents take their kids in because of continuous high heart rate and needing to have it monitored," Larrabee said.

According to the National Youth Tobacco Survey, tobacco use among high school students has decreased, driven by a reduction in the use of e-cigarettes, but it has increased among middle school students, said Pat McKone, senior director of policy and advocacy for the American Lung Association. McKone said Superior's environment has created the "perfect storm around addiction" because of access in the community.

Now Mayor Jim Paine is working to change the environment with a group of policies designed to limit access.

Policy changes could include zoning changes to restrict the number and location of smoke and vape shops; new licensing requirements; and bans on flavors and sales to anyone younger than 21.

"The fact is that Superior has become something of a dumping ground for smoke and vape shops," Paine said.

Paine said he plans to work with three council committees to reshape the city's policies around tobacco, vaping products, cannabis and hemp.

With talk in Madison of legalizing marijuana in some form, Paine said he wants regulations in place if legalization happens.

"I don't want to be caught off-guard when that happens," Paine said. "I want to have a very nice regulatory framework that makes it very easy for us when marijuana is legalized so we don't get a flood of new stores opening in the same way it happened with vaping. We had no regulations. Those are very lucrative products and as Duluth became more regulated, suddenly we have smoke shops everywhere. I don't want that to happen with cannabis."

While federal law prohibits the sale, use and possession of tobacco and vapor products to anyone younger than 21, Wisconsin law still permits 18-year-olds to buy tobacco products. Legislative efforts in 2019 and 2021 failed to gain concurrence to raise the legal age to 21 by the end of both biennial sessions of the Wisconsin Legislature.

Police Chief Paul Winterscheidt said without a change in the state law or a local ordinance making the legal age 21, Superior police officers are unable to enforce the federal law.

That disparity makes enforcement difficult because it would have to be enforced by the federal government, McKone said. She said people could file a complaint with the Food and Drug Administration, but she was skeptical FDA staff would be able to address the "epidemic" as efficiently as local officials.

"We need local control," McKone said.

Paine said his plan is to introduce some very aggressive policies this spring with the goal of having regulations on the books by this summer.

"I'm going to be the most aggressive person in the room on this conversation," Paine said. "So whatever my goals are, expect them to be walked back ... I feel no obligation to water this down. The political process will do that."

Paine said his overarching goal is to eliminate the ability of children to access vaping devices.

Paine said he plans to explore two "very restrictive policies" with the Public Safety Committee, which meets at 6 p.m. on the third Thursday of every month. Those policies include adopting ordinances that would raise the legal age to 21 and restrict the sale of flavored products in Superior.

The Food and Drug Administration has never authorized flavored vape products, and they have authorized others, suggesting that flavors are not authorized by the federal government, Paine said.

"The products that are being confiscated from children are almost universally flavored," Paine said. "They just make it easier for kids to access this."

With significantly higher levels of nicotine in vaping products, Paine said the city has to be much more aggressive in regulating it.

McKone said the evolution of how nicotine is delivered has changed since 2007. The level of nicotine in some of today's vapor products far exceeds the nicotine in a pack of cigarettes, she said. Some devices deliver as much nicotine as 23 packs of cigarettes, McKone said.

"These are powerful devices," McKone said. "They taste good, and they have attracted a new generation of children that are becoming addicted to nicotine."

Superior's License and Fees Committee, which meets at 3:30 p.m. on the second Monday of each month, will also be tapped to consider licensing requirements for shops that sell tobacco, vape products, cannabis and hemp.

"We regulate any number of businesses, including the sale of tobacco," Paine said. "This is a commonsense update in license and fees. I'm going to be pressing for some pretty aggressive licensing that gives us a lot of leeway and sets very strict rules and enforces them in a very strict way. ... The license, we want a lot of enforcement ability, so if you break the rules, we can swoop in right away."

City Clerk Heidi Blunt said the city's tobacco and cigarette licensing ordinance needs to be updated after the state of Wisconsin adopted new regulations in December that require establishments selling vapor products, irrespective of nicotine content, to be licensed the same as tobacco and cigarette sellers.

The new tobacco, cigarette and vapor products license went into effect March 6, requiring vape shops to be licensed like traditional tobacco sellers.

"Our current tobacco and cigarette license ordinance has no mention of electronic vaping devices," Blunt said. She said the ordinance, minimally, should reflect the new title of the license and have the correct definitions for vaping devices.

However, Paine said he wants the city ordinance to be more restrictive and include cannabis and hemp to create regulations before marijuana is legalized in Wisconsin.

The Plan Commission, which meets at 4 p.m. on the third Wednesday of each month, was the first committee to discuss new regulations but has taken no action yet. Commissioners discussed potential zoning ordinances that would restrict the number and location of smoke and vape shops in Superior.

"These shops do not contribute to our economy, not significantly," Paine said. "Bringing food into neighborhoods, bringing entertainment into neighborhoods. Those are good and build stronger neighborhoods. Those get people out of their houses ... smoke shops don't do that. They prevent other businesses from coming in."

Economic Development, Port and Planning Director Jason Serck said the zoning change wouldn't affect existing businesses but would limit new businesses.

Superior has used zoning regulations in the past to restrict businesses that officials deemed undesirable. In 2004, the city council adopted regulations to curb the growth of high-interest lenders, such as payday and title loan companies in the city. The regulations restricted them to one zoning district, limited the number on a per capita basis, limited hours of operation and restricted proximity to other high-interest lenders and residential districts.

Now if the city gets a call from someone who wants to open a payday loan business, Serck said the city simply tells them they are not eligible.

Since adopting those zoning changes, Serck said the city hasn't had an increase in payday lenders, and through attrition, has one or two fewer payday lenders now than it did when the ordinance was adopted.

Serck said he would anticipate that an ordinance restricting smoke and vape shops would have similar restrictions to those adopted to address payday lenders. Preliminary drafts of the tobacco, vape, cannabis and hemp zoning ordinance, which will be rewritten, include limitations near places where youth gather such as schools, childcare centers, the library, parks and playgrounds.

"I think we can make a real impact if we start putting up some barriers," Councilor Mark Johnson said. "That would be putting some restrictions on the total number of vape shops or smoke shops, limiting where they are located in the city."

Johnson, who works at the high school, said it's an issue the school addresses daily; he estimated school officials confiscate about 50 vape devices each month. In the three days leading up to the Feb. 21 Plan Commission meeting, Johnson said he had confiscated two devices himself.

Larson said that number doesn't reflect the total number of devices students have because they are good at concealing them.

"It's all one policy or policy goal but we'll treat them as individual policies with the goal that any one of them would be effective, all of them together would be much more effective even than the sum of the individual policies," Paine said.