By Jordan Ferguson and Andrew Maiorano.
E-cigarette regulation is in a holding pattern, as interested parties wait on both federal and state rules that may define the limits of how these devices can be controlled. Yet, recent action at the state level may shed some light on the way regulations could be trending in the months to come.
E-cigarettes (or e-cigs, for short) are battery-powered tube-like devices, often built to look like traditional cigarettes. They release water vapor laced with “e-juice” from a container. That “e-juice” typically includes propylene glycol, vegetable glycerin, flavorings and varying amounts of pure nicotine. Starter kits for e-cigs run between $30-$100, with replacement cartridges costing around $600 per year (as compared to around $1,000 per year for a pack-a-day cigarette habit). E-cig use has grown over the last few years, jumping from 10 percent of cigarette users in 2010 to 21 percent in 2011.
Despite their growing use and popularity, there is still relatively little regulation of e-cigs at the federal level. Currently, the FDA’s Center for Drug Evaluation and Research only regulates e-cigs that are marketed for therapeutic purposes. Though the FDA plans to regulate e-cigs, the agency has announced that there needs to be more studies on e-cigs to determine their potential risks, and so it has declined to step in until more information is available. There are several options for potential regulation, including: banning sales to minors, prohibiting free samples, banning sales through vending machines, requiring warnings about nicotine and its addictive properties, requiring listing the ingredients of the “e-juice” on labels and prohibiting health-related claims without evidence to corroborate them.
The State of California appears to be ramping up for regulation, and has dropped several hints at what those may look like, including a new study and several new pieces of legislation. That new study, “State Health Officer’s Report on E-Cigarettes: A Community Health Threat,” advocates for increases in education to counter the marketing of e-cigs to teens, and argues they should be regulated in a comprehensive manner consistent with how we approach traditional cigarettes. According to the study, in 2014, teen use of e-cigs surpassed the use of traditional cigarettes for the first time, with more than twice as many 8th and 10th graders reporting using e-cigs as traditional cigarettes. Among 12th graders, 17 percent reported using e-cigs vs. 14 percent using traditional cigarettes.
The study also examined the health effects of e-cigs, which also emit a concoction of chemicals toxic to human cells in the form of an aerosol. Mainstream and second hand e-cig aerosol contain at least 10 chemicals on California’s Proposition 65 list of chemicals known to cause cancer, birth defects or other reproductive harm, according to the report. Further, the study determined that there is no scientific evidence that e-cigs help smokers successfully quit traditional cigarettes, with a separate study finding 89 percent of e-cig users were still using them one year later.
Beyond the study, new pieces of state legislation introduced over the past few months may change the way California approaches e-cigs. AB 216, introduced Feb. 2, would prohibit the sale of any device intended to deliver a non-nicotine product in a vapor state to persons under 18 years of age, thus reducing the likelihood that these devices can be used as de-facto e-cigs by minors. SB 24, introduced in December, otherwise known as the Stop Tobacco Access to Kids Enforcement Act (STAKE Act), establishes various requirements for distributors and retailers relating to tobacco sales to minors. The bill would extend the STAKE Act to include sales of e-cigs to minors. It would also require that retailers apply for a license to sell e-cigs and to display their license soon thereafter. It would also require that cartridges for e-cigs be in child-proof packaging. Finally, SB 140 would also change the STAKE Act’s definition of tobacco products to include e-cigs. It would also change the location restrictions for smoking cigarettes and other tobacco products, making the use of e-cigs in some of these restricted locations punishable as an infraction.
Local governments still have several options for dealing with e-cigs. They could attempt to ban them by including “vaping” and e-cig use within the scope of the definition of “smoking,” which is prohibited in public buildings, schools, beaches, farmers markets, sidewalks, trails, parks and more. Any local agency attempting to ban e-cigs should be cognizant of preemption by state law, and should also consider exceptions for vapor lounges, e-cig stores, and filming or theatrical purposes.
Local governments could also use zoning to control the manufacture or distribution of e-cigs, limiting it to industrial zones. It is also possible to enact a permitting system for retail sellers, requiring businesses to obtain a retailer’s permit and ban use of tobacco products in designated areas. It is also possible for a local agency to enact a moratorium on new e-cig sales and distribution to give the locality time to study the impact of devices and potential regulations of them. Local governments could also decline to take action, waiting for state or federal regulations before determining how best to move forward.
The new study is a big step forward and a signal to the state Legislature what direction they might go in, and the new bills reflect at least some willingness to consider robust regulation of e-cigs at the state level. For the moment, however, localities still have room to regulate themselves, to chart the best course on e-cigs and to enact legislation that will accomplish their goals, whether they wish to functionally ban e-cigs, regulate them to protect minors or leave them completely alone.