State Net Capitol Journal: With D.C. Stalled, More States Ponder Regulating E-Cigarettes

By Rich Ehisen 

The use of electronic cigarettes — battery powered devices that look like a traditional cigarette or cigar but which allow smokers to inhale flavored nicotine in a vapor form that uses no tobacco and produces no secondhand smoke — is booming. But with no definitive scientific conclusion as to their long-term safety, and lacking clear guidance from the federal government, many states are taking action to regulate them.
 
Total annual revenue for e-cigarette sales is hard to pinpoint, but most observers peg the figure at around $2 billion. That is a steep climb from 2010, when estimates generally hovered around $100 million. According to a report released last September by the Centers for Disease Control and Prevention (CDC), the number of U.S. adults who have at least tried e-cigarettes went from one in 10 in 2011 to one in five in 2012. The survey also showed a major spike among young people, as 1.8 million middle- and high-school students said they had tried e-cigarettes in 2012, the latest year in which data is available. Overall, use in that age group rose from 4.7 percent in 2011 to 10 percent in 2012. 
 
States have long worked to limit youth access to tobacco products, and many have already taken steps to block minors from accessing e-cigarettes as well. According to the National Conference of State Legislatures, 27 have adopted laws in recent years barring their sale to anyone under 18. Recent data from LexisNexis State Net shows that at least 33 states have pending e-cigarette bills, with approximately 17 of those measures aimed at prohibiting minors from buying or possessing them. 
 
Although California already has such a law, Assemblyman Roger Dickinson (D) says many young people get around it by simply buying the products online. Citing statistics that show less than 10 percent of all online sellers take sufficient steps to ensure buyers are of legal age, he introduced a bill (AB 1500) in January that would prohibit online tobacco and e-cigarette sellers from shipping their products to any California address. 
 
"Although great progress has been made to curb teen smoking, the use of e-cigarettes and the internet availability of tobacco products pose a serious risk," he told reporters. "AB 1500 will make it impossible for young people to order e-cigarettes or other tobacco products online, thereby safeguarding them from the dangers of smoking." 
 
Cynthia Cabrera, executive director of the Smoke Free Alternatives Trade Association (SFATA), says her industry fully supports states' efforts to prevent young people from using e-cigarettes. Like most in the e-cigarette game, however, she disputes the CDC report's findings, arguing that the agency skewed its data and survey methods in a way that makes the number of youth using their product look much larger than it is. 
 
"Nobody wants to sell to minors," she says. "We applaud states for implementing age restrictions. The state level is where that should be happening." 
 
States have taken other actions as well. Four — Arkansas, New Jersey, Utah and North Dakota — ban the use of e-cigarettes in public places the same as other tobacco products. Minnesota imposes a hefty tax on them, 95 percent, of their wholesale price, though a handful of others have considered and rejected similar proposals. A few measures pending this year, such as New York's SB 8190, would specifically exempt e-cigarettes from the kind of heavy taxation they receive in Minnesota. 
 
States have taken the point on classifying and regulating e-cigarettes for one primary reason: the federal government has failed to do so. That isn't for lack of effort. The Food and Drug administration has been trying to claim primacy over the e-cigarette industry for years, first by seeking to ban them from being brought into the country as an unproven drug. That stance was challenged in court by a company called Sottera Inc., which sells e-cigarette products under the brand name NJOY. The U.S. Court of Appeals for the District of Columbia Circuit ruled in Sottera's favor in December, 2010, though the court left the FDA an out: although it could not regulate e-cigarette products as a drug, it could do so as a tobacco product, making e-cigarettes subject to the same taxes and limits on advertising as regular cigarettes. The FDA says it intends to do just that, but so far has not. 
 
In the meantime, states appear primed to keep imposing their own parameters, much to the consternation of the product's advocates. Supporters say e-cigarettes are a viable, effective alternative to regular tobacco products, one that allows a user to inhale nicotine without the added tobacco, tar and plethora of other chemicals also ingested when smoking a cigarette. And because they contain no tobacco, some tax analysts consider efforts to tax them as such more about money than improving public health. E-cigarette vaporizers also emit no secondhand smoke, only an odorless vapor that theoretically allows a user to light up in a crowded room without offending anyone else. And because they have the look and tactile feel of a cigarette, they can be effective in helping regular cigarette users kick their habit. 
 
Reviews on that last point are subjective. Jamie Kale, 30, a resident of Sacramento, California, says she has smoked cigarettes since age 13. After several attempts to quit using a variety of cessation methods — nicotine gum, patches, hypnosis — she decided to try an advanced personal vaporizer, or APV, one of the largest e-cigarette units on the market. The idea, she says, was to "help break me of the habit of feeling a cigarette between my fingers." Although it did keep her away from cigarettes for a while, she says, it didn't last. She kept slipping a real smoke in here and there until eventually she just went back to being a regular user. 
 
"They just don't have the throat burn I'm used to," Kale says, adding that she is trying again to quit, this time cold turkey. 
 
Her friend Kristene David, also a long-time smoker, had more success. David says she too had used the nicotine patch and other products before trying e-cigarettes. After six months, she says she was able to stop using both and has been entirely smoke-free for the last 14 months. 
 
Critics, meanwhile, continue to question e-cigarettes' safety and to call for more through independent — read not industry-sponsored — testing of the liquid solutions vaporizers use. Those solutions generally contain a combination of nicotine, propylene glycol and glycerin, along with any flavoring agents, which is all heated into a vapor and then inhaled by the user. While the FDA considers those chemicals to be safe, many public health advocates want to know if smoking them carries any long-term health risks, both for users and the people around them. 
 
That question is ironic to smokers like Kale. 
 
"Do they know what's actually in a cigarette?" she asks. 
 
There is another irony as well. Large tobacco companies like Altria have got into the e-cigarette game, and strongly support the FDA regulating them like tobacco. SFATA's Cabrera says that is an effort to undermine and destroy the mostly small companies that populate the industry by forcing them to adhere to "onerous" rules and costly "premarket review" procedures they don't have the resources to deal with. 
 
"This industry has been built by small entrepreneurs, not by 'Big Tobacco,'" she says. "But now they are in and they want to wipe out their competition." 
 
The e-cigarette industry remains hopeful it can convince the FDA to carve out a separate designation that doesn't lump it in with big tobacco companies. Meanwhile, many public health entities, including the American Cancer Society and U.S. Surgeon General's office, continue to push the agency toward more long-term studies before it lets e-cigarettes off the tobacco hook. Last fall, the attorneys general of 37 states and three U.S. territories also chimed in, sending the FDA a letter urging it to go forward with regulating e-cigarettes like tobacco. 
 
While it appears the FDA is a lock to go with the tobacco designation, it has been three years since it said it would do so and yet the agency still has not issued any final rules. It was scheduled to take that action last October, but the government shutdown put it on hold and no new issuance date has been set. 

E-cigarettes smoldering issue in states
 
Legislation pertaining to electronic cigarettes, or e-cigarettes, is currently pending in at least 28 states, according to analysis by LexisNexis State Net. Hawaii is particularly active on the issue, already having enacted HB 672, barring the sale of e-cigarettes to persons under 18, and still deliberating on six other bills, including SB 1127, which has passed the state's Senate. The issue is also very active in Virginia, where four e-cigarette-related bills are under consideration.

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