Native smoke shops pushing back on flavored e-cigarettes ban

As New York State moves to ban flavored e-cigarettes, there’s one venue that may fall outside the government’s authority to enforce the restriction: Indian reservations.

At the Shinnecock reservation in Southampton, several shops were advertising an array of flavored electronic cigarettes prominently this week after the state moved to ban them last month. A court has stayed the order pending a hearing.

Taobi Silva, a former tribal trustee for the Shinnecock Nation who manages the Shinnecock Smoke Shop on the western most end of a strip of reservation shops on Montauk Highway in Southampton, said vaping sales have been steady since the ban was first announced last month. “I don’t think people are aware the ban doesn’t affect us,” he said. “We expect to see a big jump in sales if the ban goes into place.”

Bryan Polite, chairman of the Shinnecock Nation's tribal trustees, said the nation's Office of Tribal Tobacco Products regulates the products and "that office doesn't see any reason to initiate a ban on our stores that are regulated by that office." 

"We are not governed by New York State when it comes to" vaping or tobacco products, Polite said. The tribe has not been contacted by state regulators about the sale of the products and he said he doesn't expect it to because "they don't have any jurisdiction when it comes to how we conduct our business affairs" in civil matters.

Should the tribal tobacco office issue a ban, the shops would comply. Until then, "the four shops are going to coninue selling them." 

Polite added that at his shop "we go out of our way not to sell to minors. At my store I make it a mission to make sure everybody is carded," to verify age. 

The state health department declined to comment on the tribe’s assertion of sovereignty in regulations involving vaping, citing the lawsuit filed by a vaping industry group that led to court stay of the flavor ban.

Juul, an e-cigarette company, on Thursday announced it was voluntarily suspending the sale of "non-tobacco, non-menthol-based" e-cigarette flavors in the U.S.  “We must reset the vapor category by earning the trust of society and working cooperatively with regulators, policymakers, and stakeholders to combat underage use while providing an alternative to adult smokers," Juul chief executive K.C. Crosthwaite said. 

But Silva said the Shinnecock Smoke Shop sells multiple other vaping brands in addition to Juul, including Hempzilla CBD pods.

For Silva and other tribal members, sales of cigarettes have become a mainstay of income on the reservation—an economic driver after broken promises to help the tribe open a casino in years past and crackdowns on fishing and advertising initiatives.

Harry Wallace, chief of the Unkechaug tribe who operates the Poospatuck Smoke Shop on the Mastic reservation, said flavored e-cigarettes don’t enjoy widespread distribution on the Mastic reservation.

“I personally have not considered the issue as it is not a major distribution item on our land, but I imagine it will taken up in due course,” he said.

The Shinnecock also are looking into opening a gas station and medical marijuana dispensary, projects that are in the development stages. It has also voted to work with the Seminole tribe to work on a Hard Rock Hotel and Casino in the New York metro area, Newsday has reported.

“Number one with us is economic development,” Silva said. “At every turn we’ve hit road blocks” in getting approvals. A tribal monument on Sunrise highway that billboards advertising to summer traffic is the subject of a state suit to remove it.

Municipalities “spend all this taxpayer money on litigation,” Silva said. “It could all be handled with conversation.”

Silva estimated that four of the nine Shinnecock shops sell Juul e-cigarettes with a variety of flavors.  

The tribe has its own set of rules for the sales of e-cigarettes and other smoke-shop products, including disallowing sales to minors. Four Juul pods sell for $18, and each is the equivalent of a pack of cigarettes. A Juul starter kit costs $35, and the kit with two pods is $55.

While health officials have raised serious concerns about the products amid a series of lung infection injuries and deaths nationwide, Silva said there remains a debate about whether commercial e-cigarettes are the problem. “We believe this is an overreaction to flavored e-cigarettes,” Silva said of the ban. “Our customers are not kids. They’re mostly adults attempting to stop smoking traditional cigarettes."

Gov. Andrew M. Cuomo and other supporters of the ban on flavored vape pods say e-cigarette companies deliberately try to hook kids on their products through flavors such as “Scooby Snacks” and strawberry-watermelon bubble gum – an allegation e-cigarette companies deny. Most vape products contain nicotine, which is highly addictive.

Although e-cigarette companies like Juul say their products are only targeted at people trying to quit tobacco smoking, there are far more teenagers in New York vaping than smoking traditional cigarettes. Only 4.3% of high school students smoked tobacco in 2016; nearly 40 percent of high school seniors vaped in 2018, according to the state Department of Health.

Nearly 1,500 people nationwide have confirmed cases of lung injuries linked to vaping as of Oct. 15, according to the U.S. Centers for Disease Control and Prevention. Thirty-three people have died, including a 17-year-old Bronx boy. 

Long Island hospital officials report at least 40 lung diseases associated with vaping. Most of the people with lung injuries nationally and locally whose e-cigarette history was known vaped THC, the chemical in marijuana that causes a high, or THC and nicotine, although some said they only vaped nicotine.

E-cigarettes comprise about 5 percent of smoke-shop sales, Silva said, but traditional tobacco products have been relatively stagnant for months. Shinnecock Smoke shop sells name brands such as Marlboro for just under $100 a carton. “The margins aren’t great on the name brands,” he said. “I keep them as a service to customers.” Native cigarette brands such as Seneca and Signal, which are not subject to state tax, sell for around $30 a carton and up.

“It’s a dying industry,” Silva said about traditional cigarettes. “E-cigs are really disrupting the profits of big tobacco.”

By Mark Harrington

mark.harrington@newsday.com,david.olson@newsday.comMHarringtonNews,

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.