As public health officials confront an outbreak of lung injuries linked to vaping from e-cigarettes, a patchwork of state and local responses have cropped up in lieu of federal regulation.
But with a developing and not yet fully understood problem, and with several e-cigarette bans in a handful of states already blocked by courts amid concerns that bans could reverse gains in curbing tobacco use, the regulatory maneuvering over vaping is likely to be among the biggest policy issues of the months to come.
And while the ultimate result of actions by governors, health agencies, local and state governments and likely the federal government remains to be seen, there’s another big unknown: health officials don’t know exactly what they’re dealing with. Regulating an unidentified threat is tough.
The federal Centers for Disease Control said in late October that at least 37 people have died from the lung illnesses, and nearly 1,900 have been harmed, with cases in every state except Alaska.
Now called EVALI, or e-cigarette-vaping-associated lung injury, the cases started showing up in late spring in the Midwest. Doctors soon linked them, but are still unsure of their cause.
“FDA and CDC have not identified the cause or causes of the lung injuries in these cases, and the only commonality among all cases is that patients report the use of e-cigarette, or vaping, products,” the CDC said last week. In many cases, users were vaping marijuana – but not in every case. Officials aren’t sure if one ingredient, different ingredients, or a combination of ingredients is to blame.
The reaction, however, has been swift. A handful of states have enacted emergency bans on some of the pods inhaled through e-cigarettes. Just as quickly, the vaping industry went to court in every one of those states – and several bans are on hold, raising the likelihood the issue may also be in litigation over the months to come. And even in states where governors and health officials aren’t stymied by the courts, the response is just a beginning for yet another reason.
“All these emergency actions by governors are temporary,” notes Cathy Callaway, director of state and local campaigns for the American Cancer Society, one of several health organizations working on a response to safety and regulatory concerns around vaping.
By the time the outbreak started making the news, some local and state officials were already under pressure to address the new e-cigarette fad that has quickly grown to massive levels, especially among youth. And some officials, who initially looked at vaping favorably because it was billed as a safer alternative to traditional smoking, were starting to hear concerns from advocacy groups and doctors that it too is likely not harmless.
Just as had been the case a couple generations ago with cigarettes, the U.S. Surgeon General validated the rising concerns in a 2016 report.
“While these products are novel, we know they contain harmful ingredients that are dangerous to youth,” the report said.
The speed with which vaping had spread had caught many regulators off guard. E-cigarettes, which heat pods of liquid containing nicotine and/or other chemicals, turning it into a vaporized aerosol that can be inhaled, had only been widely available since about 2007. But by 2014, they were more popular than cigarettes among teens, according to the Surgeon General. Their use had exploded in schools, increasing more than 900 percent in just a few years. In 2018, about one in five high school students said they vaped.
Into this rapidly changing atmosphere in which some officials were being blamed for missing a new danger came this summer’s outbreak of fatalities – seemingly out of nowhere. Officials weren’t keen to be blamed for continuing to react slowly to what was now apparently a serious threat. Most legislatures weren’t in session, but several governors quickly took action.
Michigan was first, with Gov. Gretchen Whitmer (D) ordering a six-month emergency moratorium on the sale of flavored e-cigarette pods in early September. Other bans followed: flavored e-cigarette sales were temporarily barred by gubernatorial order or by state health officials in New York, Rhode Island, Washington, Utah, Oregon, and Montana. The bans all came within just a few weeks of the first reports of deaths. Massachusetts Gov. Charlie Baker (R) ordered a halt to the sale of all vaping products, not just flavored ones.
While the state actions came after this summer’s attention to the issue, a few local governments had already banned the sale of e-cigarettes. In June, San Francisco became the first in the country to do so even though the largest e-cigarette company by far, Juul Labs, is based there. Sacramento banned flavored pods in the spring, and Los Angeles County last week voted to ban all flavored tobacco products, including e-cigarette pods.
In all, more than 200 communities around the country have passed some sort of restrictions on e-cigarettes, according to the Campaign for Tobacco Free Kids – some before the outbreak of lung injuries, some after.
The flavored vapes aren’t necessarily being blamed for the lung illnesses turning up around the country, but they were already under scrutiny before the outbreak by public health officials who believe they’re a factor in the massive rise in teen vaping.
It is possible, however, that certain chemicals used in some flavor pods may be causing or contributing to the illnesses. Researchers have known for several years that some vape pods may contain potentially harmful chemicals like diacetyl – the chemical linked to “popcorn lung” disease – though Juul says its products don’t contain the substance. Other e-cigarettes might, however, and the industry says that banning the legal sale of e-cigarettes opens the door to sales of black market vapes containing even more unknown chemicals, potentially lengthening the list of possible culprits.
The speed with which some states acted spurred complaints from e-cigarette sellers that the bans were unfairly rushed, without giving them a chance to make a case, and several judges agreed they might actually have one. Nearly as quickly as the bans were ordered, courts have blocked the orders in Michigan, Montana, New York, Oregon, and Utah.
The American Vaping Association said in a statement that officials banning e-cigarettes are “weaponizing a health crisis” against their products when they should he targeting black market vapes, especially those containing the marijuana chemical THC.
The flavored vaping products remain prohibited in Rhode Island and Washington state, and the ban on all e-cigarettes remains in effect in Massachusetts, though all three of those bans face pending legal challenges.
As the Cancer Society’s Callaway noted, the bans aren’t permanent anyway, and in many states, lawmakers are likely to get involved.
But many advocates say the response to the dangers of e-cigarettes ultimately may not rely on outright prohibition of all e-cigarette products. Especially if traditional tobacco products remain on the market.
“A ban on flavored e-cigarettes...could push nicotine-addicted youth to transition to menthol-flavored combustible cigarettes or flavored cigarillos or cigars, which are legally sold in most communities,” the Public Health Law Center at Mitchell Hamline School of Law in Minnesota said in a statement.
Restrictions on the sale of the flavored pods is the policy being pursued, albeit more slowly, by the federal government. Health and Human Services Secretary Alex Azar said in September that the FDA was finalizing plans for restrictions or regulations of flavored e-cigarettes, but the timeline and details of that effort remain unclear.
Even so, Juul announced in October it was halting sales of all of its flavored pods except for the classic tobacco, mint and menthol varieties. And then last Thursday, the company announced it was also pulling the plug on mint pods “in light of” new data released this week showing mint’s popularity among underage vapers.
The Cancer Society’s Callaway said in an interview that the ongoing, long-term effort to reduce e-cigarette harm is likely instead to follow the same route the anti-tobacco movement did.
“We know that tax increases, [place-specific] smoke-free laws and funding for cessation are proven strategies,” Callaway said. The Cancer Society doesn’t have a one-size-fits-all strategy for which strategies are pursued where and will push the things most likely to be effective in each situation, she said.
Public awareness campaigns, instrumental in the 1990s effort to curtail smoking, also should be central to the effort to regulate vaping, said Callaway. Efforts already underway in that regard include California Gov. Gavin Newsom’s pledge to spend $20 million to raise awareness about vaping dangers.
Several states have also expanded or interpreted their smoke-free workplace restrictions to include vaping, among them California, Oregon, Nevada, New York, New Jersey and Florida, according to the American Nonsmokers' Rights Foundation.
The Public Health Law Center said all of the approaches at each level of government need to be pursued comprehensively, a push that will likely take different looks around the country over the foreseeable future.
“Temporary state action to address the harms of youth e-cigarette use,” the center’s statement said, “is not a substitute for bold, comprehensive, and permanent local and state policy.”
-- By SNCJ Correspondent Dave Royse
Handful of States Ban Vaping
As of Oct. 15, governors or public health agencies in seven states had imposed temporary bans on the sale of vaping products, four of which had been at least partially blocked by legal challenges, according to Time. At least five states have also introduced bills this year aimed at banning flavored tobacco or vaping products, according to LexisNexis State Net’s legislative tracking system.
Source: Time, LexisNexis State Net