Voltage Vapin', owned by Virginia Smoke Free Association President Jay Taylor, opened in 2013. Taylor and other vape shop owners are worried how a potential state tax could affect them. (Mechelle Hankerson/The Virginia Mercury)

It used to be that Jay Taylor smoked his first cigarette — a Marlboro Red — before getting out of bed in the morning. By the time most days were over, he would have smoked three packs.

Taylor worked at UNOS, which manages organ transplants, so he knew that smoking degraded his lungs, heart and other vital organs. But he couldn’t stop, until he was introduced to vaping.

“I approached it as a way to cut back,” he said. “Within 48 hours, I didn’t want a cigarette.”

Taylor left his job at UNOS to open one of the first vape shops in Virginia in 2013. It’s still open today in Chesterfield County. He’s also president of the Virginia Smoke Free Association, which lobbies policymakers on behalf of the state’s 400 vape shops. 

But steps at the state level to tax vapor products could stymie Taylor’s businesses and the hundreds of other shops in the state, who say vaping is a safer and healthier alternative to smoking tobacco cigarettes. And, Taylor and other proponents warn, an existing black market of vape products would only grow stronger if the products get too expensive because of additional taxes.

The conversation straddles tax and health policy now that several deaths — including one of a Virginia man — have been attributed to vape products. It’s not the first time lawmakers have had to weigh the issue. Sen. Adam Ebbin, D-Alexandria, has introduced legislation related to taxing or limiting access to vape products since 2014.

“A lot of this is still unstudied and unregulated … but they’ve flooded the market,”  said Will Hockaday, outreach coordinator for the Department of Health’s Tobacco Control Program. “A lot of benefits are really widely unknown and unfortunately the risks to health are just starting to come around.”

President Donald Trump said he intended to pull flavored e-cigarettes– a favorite among young users- from the market until the Federal Drug Administration reviews the product. Gov. Ralph Northam “is continuing to monitor this issue closely — as a doctor, his top priority is ensuring the health and safety of Virginians,” spokesperson Alena Yarmosky said in an email.

As of Oct. 1, there have been 33 confirmed or probable cases of vaping-related illness in the state, according to the Virginia Health Department. Symptoms include chest pain, shortness of breath, nausea, vomiting, fever and abdominal pain.

According to the VDH, most of the people who reported lung injuries from vaping were using products with THC and nicotine.  Not all vaping products contain THC and none in Virginia should have it, since THC remains illegal.

Some states have banned vaping because it’s not clear how safe the products are and some products, especially electronic cigarettes, like JUULs, have become popular among teenagers. Others tax it, either based on nicotine content, the amount of vaping liquid purchased or the cost of the entire purchase.

Last month, the acting commissioner of the federal Food and Drug Administration, which gained the authority to regulate vaping devices in 2016, said the agency “has worked at maximal speed to regulate this rapidly evolving class of new tobacco products, but our policies and procedures in this area are still evolving.”

The FDA has enforced the prohibition on selling e-cigarettes to minors and conducted inspections of what it calls “electronic nicotine delivery systems” manufacturing facilities and vape shops.

“This seems to be inevitably a public health (and) public safety issue, not just taxes,” said Del. Lee Ware, R-Powhatan, chair of the Joint Subcommittee to Evaluate Tax Preferences, at a Monday meeting.

The subcommittee is considering Ebbin’s 2019 bill that would impose a 40% tax rate on the wholesale price of vape products and funnel most of the revenue into a fund for more school counselors. 

Vape products include traditional cartridge machines, which use flavored liquid, and e-cigarettes, which use pods pre-filled with product. Both have varying levels of nicotine.

Lawmakers like Ebbin have concerns about e-cigarette products, which appeal to younger customers and usually people under 20 years old. It’s not legal to purchase the products until age 21 in Virginia, but many teenagers and young adults purchase the products online to get around the law. 

“For high school students for example, where this is proliferating rapidly … it doesn’t stop smoking, it drives youth to a dangerous habit,” Ebbin said.

Vape usage patterns are “very murky,” Hockaday said.

“We know it’s very easy to argue that some of these products are reduced risks,” he said. “But they do still promote addiction.”

The Virginia Smoke Free Association says it considers vaping primarily as a smoking cessation tool and thinks the state shouldn’t tax the products for that reason. At Taylor’s shop, he said there are customers who eventually buy nicotine-free vape liquid (though they still like the ritual of using the vape). The Department of Health advises people trying to quit smoking to use “evidence-based treatments, including counseling and FDA-approved medications, rather than e-cigarettes.”

Taxing vape products won’t stop the off-market practices causing many of the illnesses, proponents of vaping told lawmakers.

JUUL, manufacturer of a popular e-cigarette, pulled its flavored pods off the market to discourage young users.

“And what happened? Counterfeit products,” Max Behlke, director of state public policy for JUUL told lawmakers. “Until these products are properly regulated and enforced, taxes aren’t going to make a difference.”

Like Behlke, vape shop owners maintain that recent vaping-related deaths are because of knock-off products, not ones vetted before being offered in legitimate shops. In cases where vape users buy off-market products, sellers often cut THC liquid with dangerous ingredients, like Vitamin E acetate, Taylor said. 

At Taylor’s shop, he visits each lab that makes the liquid for traditional vapes with cartridges.

“Have there been bad players? Sure. But every industry has bad players,” Taylor said. “This industry wants to do the right thing.”