E-cigarettes Regulations Stumps States

E-cigarettes are a nearly $2 billion industry that has operated largely outside the scope of federal regulators since its inception. E-cigarettes are battery-operated products designed to deliver nicotine, flavor and other chemicals by turning nicotine into an aerosol that is inhaled by the user, known as “vaping”. Since these products generally do not contain tobacco, e-cigarettes currently fall outside the jurisdiction of most traditional state laws regulating tobacco products. Due to this lack of regulation, state legislatures, the U.S. Congress, and the U.S. Food and Drug Administration (FDA) have been exploring means of regulation via indoors use bans, tobacco taxes, and sales bans.

On April 25, 2014 the FDA proposed rules that would extend the agency’s regulatory authority over tobacco products to include e-cigarettes and other similar devices. This includes a prohibition on sales to minors, required scientific review of new tobacco products and scrutiny over the claims that these products may reduce the hazards traditionally associated with tobacco use. Additionally, e-cigarette companies would be required to register with the FDA and list the ingredients in their products. These new rules are expected to be released this June. In the meantime, legislation has been proposed or passed in most states to address the three biggest questions when it comes to e-cigarettes: who should be able to use the product; how should it be taxed; and how should it be defined in statute.

One of the major concerns with the FDA’s existing rules is that they do not include an outline or designation of how new products can be approved. Existing guidelines, the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), say that new tobacco products can be approved if they are “substantially equivalent” to a product on the market before February 15, 2007. This poses a problem, as e-cigarettes were not clearly being sold before that time and the “substantial equivalent” method of approval might not be valid for e-cigarettes. Addressing this shortcoming of the existing rules is one of the main goals of the FDA’s current regulatory proposal.

According to the National Conference of State Legislatures, at least 42 states currently prohibit sales of e-cigarettes or vaping/alternative tobacco products to minors. The majority of these states have opted to designate e-cigarettes as a new class of tobacco product, or “alternative nicotine product.” Other states including Colorado, Rhode Island, South Dakota, Tennessee and Wyoming have passed legislation to include e-cigarettes under the tobacco product designation.

Urgency to address this issue was raised following the April 16 release of a report from the Centers for Disease Control (CDC). According to a press release from the CDC, e-cigarette use tripled among middle and high school students from 2013 to 2014. Among highs school students e-cigarette use rose from 4.5 percent in 2013 to 13.4 percent in 2014, rising from approximately 660,000 to two million students and among middle school students it rose from 1.1 percent in 2013 to 3.9 percent in 2014, an increase from approximately 120,000 to 450,000 students. This increase shows that more students are using e-cigarettes than traditional cigarettes. This in turn has pushed legislators to respond to concerned parents, media outlets and constituents.

With eight states lacking in specific e-cigarette legislation, the new FDA rules going into effect this June and major industry players profiting off the lack of federal guidelines it remains likely that both regulators and legislators will continue to examine this issue for the coming years.