Denver City Council votes to ban most flavored tobacco, vaping products starting in 2023

The Denver City Council approved a ban on most flavored tobacco and vaping products Monday night.

Come July 2023, the only places adults will be able to legally buy any flavored smokables in the city will be at hookah lounges or shops selling pipe tobacco and handmade cigars.

The flavor ban ordinance passed by a vote of 8-3 Monday. Council members Kevin Flynn, who sought to amend the measure to exempt menthol products, and Chris Herndon, who opposed it in its entirety, were absent.

The vote brings to a close a months-long debate between council members who argued that limiting access to flavored products was essential to fighting youth smoking and vaping and members who viewed the ban as government overreach more likely to hurt small business owners than make a dent in the youth nation’s vaping epidemic.

“This really is about public health and we make those decisions based not on positions of power and who contributes to the tax base but it’s really about limiting harm,” Councilwoman Jamie Torres said prior to voting yes. “Kids aren’t property owners and kids aren’t business owners.”

Council members Amanda Sawyer and Debbie Ortega co-sponsored the bill. It took three committee meetings and a public hearing in the council chamber on Nov. 29 to reach Monday’s outcome. Along the way, the bill was watered down in some places but held strong in others.

Sawyer and Ortega accepted amendments that exempted hookah lounges that only serve customers 21 and up and another one that carved out an exemption for pipe tobacco and handmade cigars.

The tobacco used in hookahs, tall water pipes that have been used in Middle Eastern cultures going back centuries, is always flavored so a ban would have effectively shut down roughly 20 businesses in the city if they had not been exempted.

Councilman Paul Kashmann brought the pipe and cigar amendment, noting that many of those products also have flavoring agents in them. Kashmann’s rationale for the amendment is that the ordinance is focused on preventing youth smoking.

“I don’t know kids walking around with nasty old stogies,” he said at last month’s council hearing.

The new ban left several groups feeling burned. Opponents included owners of smoking and vaping-focused small businesses and some members of Denver’s Black community that viewed banning mentholated smoking products as a paternalistic attack on their personal choices.

Phil Guerin, the owner of the Myxed Up Creations smoke shop on East Colfax Avenue, attended multiple hearings to argue against the ban. He claims to have helped thousands of adults stop smoking by giving them an alternative through vaping products. The ban will undermine more people’s efforts to quit.

“You’re acting like we don’t even exist,” Guerin said at Monday night’s meeting. “You guys could have come to me and we could have addressed this as a community. I have solutions.”

A proposed amendment from Councilwoman Kendra Black that would have exempted 21-and-up smoke shops that check IDs was voted down during the bill’s initial council hearing. Flynn’s amendment that would have exempted menthol-flavored products also lost on a split vote last month.

Community activist Alvertis Simmons was among those who argued for that, decrying the council for exempting hookah lounges in part because of their cultural significance while targeting menthol largely because of its prevalence among Black smokers.

“At some point City Council you are going to have to come to the realization that Black folks got our own mind,” Simmons said. “You talk about equity, you’ve got to be equitable.”

One amendment that did make it in at last month’s council hearing was a year delay in implementation. Rather than going into effect on July 1, 2022, the ban will start on July 1, 2023, giving small business owners more time to adapt. That amendment was also put forth by Kashmann who ultimately voted no on the ban.

On Monday, Councilman Jolon Clark said he hoped the additional time might allow the city to explore enacting stricter penalties for smoke shops that sell to underage consumers and other regulator avenues for addressing youth use. Ideally, he said, he’d like the city to get to a place where it could revisit the exemption for 21-and-up smoke shops. He voted yes on the ban.

Some council members remain skeptical of the ban’s value. Denver becomes the seventh Colorado municipality to limit the sale of flavored tobacco and vape products but it has neighbors on all sides that don’t limit those sales leaving the door open for people to obtain them elsewhere and still possible pass them on to kids.

“There is nothing in this legislation that would stop someone from going to Aurora or Commerce City and buying menthol cigarettes and selling them in a park in Denver,” Council President Stacie Gilmore said during the Nov. 29 public hearing. Gilmore voted no Monday. “I frankly am very concerned about the unintended consequences that we haven’t fully explored and delved into as a council.”

Joe Rubino/Denver Post