States racing to regulate e-cigarettes

Liz Szabo, USA TODAY, February 7, 2015

The American Cancer Society has found itself in a surprising position: opposing state proposals to make it illegal to sell e-cigarettes to minors.

The cancer society doesn't want kids to use e-cigarettes, but it objects to what it calls "Trojan horse" legislation – bills that appear good for public health but that could addict more people to nicotine and roll back progress against clean air-- says Cathy Callaway of the American Cancer Society Cancer Action Network. Several health groups have campaigned against e-cigarette bills around the country because of concerns about their health effects and potential to make smoking seem normal again.

Forty-one states have banned the sale of e-cigarettes, also known as "vapor products," to people under 18, according to the National Conference of State Legislatures.

But 17 of those state laws use language that could make it harder to regulate e-cigarettes like tobacco – imposing hefty taxes and including them in smoke-free laws – says Erika Sward of the American Lung Association, which also has been fighting the bills.

Kids have have many ways to get cigarettes, research shows, and there are more effective ways of keeping cigarettes away from teens than just prohibiting sales, Sward says.

Raising taxes – something specifically forbidden by a new Missouri law – does far more to cut youth smoking by making cigarettes too expensive for teens with limited incomes, Sward says.

About 40% of the price of a pack of cigarettes comes from tax, says Bonnie Herzog, an e-cigarette industry analyst with Wells Fargo Securities. Today, using e-cigarettes costs about the same as conventional cigarettes.

By lobbying for ineffective regulations and working to block stronger ones, the e-cigarette industry is "trotting out Big Tobacco's playbook from decades past," Sward says. "They're trying to protect themselves from these policies so their products remain cheap and accessible to kids."

Five states have passed laws that forbid cities approving stricter ordinances, according to a January report in the medical journal Tobacco Control.

That could stifle community action around e-cigarettes, says Mark Pertschuk, director of Grassroots Change, a network of public health movements. He notes that most clean-air laws began as local ordinances before gaining enough traction to be passed statewide.

"It should always raise red flags when people who are trying to addict you to their product come up with what appears to be a good public health measure," says Iowa state Sen. Joe Bolkcom, a Democrat. He opposed an industry-backed e-cigarette law that passed last year because it didn't include taxes or restrictions on where people can use the products.

"We're in the process of making the same mistakes that we made with tobacco," Bolkcom says. "We're going to see a whole generation of people addicted to these products."

Lawmakers in 26 states are considering e-cigarette bills in the current legislative session, Callaway says. Several would limit local action. Some impose additional regulations such as requiring childproof packaging.

An e-cigarette, also known as a vape pen, uses a battery to heat liquid nicotine into a vapor that can be inhaled. It doesn't produce smoke. Some of the liquids include flavors such as bubble gum and "Frooty Loops." Some are nicotine-free. Early versions looked like cigarettes, but newer products come in different shapes and sizes.

With hundreds of brands for sale, the popularity of e-cigarettes is racing ahead of efforts to regulate them, Sward says.

The Food and Drug Administration has proposed regulations for e-cigarettes, including a prohibition against selling them to minors, but the agency has not yet finalized the rule.

This month, Michigan Gov. Rick Snyder, a Republican, vetoed a bill banning e-cigarette sales to minors because it would not have regulated them as tobacco products.

Too soon for a "sin tax?"

Many lawmakers say they're trying to strike a balance, protecting kids without crushing a fledgling industry.

Michigan state Sen. Rick Jones, a Republican, says only adults should be able to use e-cigarettes. He says they are no different than nicotine patches or gum and should be taxed the same way, with a sales tax. "They are simply a nicotine delivery device," says Jones, who was disappointed that Snyder vetoed Michigan's bill. "They are not tobacco cigarettes. I cannot support taxing them that way."

Ohio state Rep. Stephanie Kunze, a Republican, says she can't see imposing a "sin tax" on e-cigarettes before science has shown whether they're harmful.

Minnesota is now the only state to tax e-cigarettes. A tax in North Carolina is scheduled to take effect in July.

Some lawmakers say they felt pressure to compromise so they could quickly ban e-cigarette sales to minors.

Last year, for the first time, more teens used e-cigarettes than conventional cigarettes. About 17% of high school seniors used e-cigarettes, while 14% used conventional cigarettes, according to the University of Michigan's long-running Monitoring the Future study.

Kunze says she voted for Ohio's ban on selling e-cigarettes to minors because of concern for children like her two teenage daughters.

"My No. 1 concern was to make them illegal for purchase by kids as fast as we could," Kunze says. "These things look like Sephora eyeliner and they taste like Dr. Pepper."

Iowa state Sen. Herman Quirmbach, a Democrat, sponsored his state's law banning e-cigarette sales to minors last year. While he says he knew including e-cigarettes in the state's ban on smoking indoors wouldn't pass, he felt it was important to take immediate action to protect kids, with the hope that lawmakers can revisit the issue.

The e-cigarette industry has been swift to shape how vapor products are regulated.

Reynolds American, which owns both R.J. Reynolds Tobacco Co. and R.J. Reynolds Vapor Co., believes that taxing e-cigarettes like regular cigarettes would "place hurdles that would discourage cigarette smokers from considering switching" to e-cigarettes," spokesman Richard Smith says.

Altria Group, formerly called Philip Morris, sells several e-cigarette brands through a company called Nu Mark.

"We've been pretty active at the state level in working with legislators on minimum-age-of-purchase laws," Altria spokesman David Sutton says. "We've been working with legislators to make sure that vapor products are only available to adults."

But banning e-cigarette sales to kids only makes teens want them more, says Stanton Glantz, a professor of tobacco control at the University of California-San Francisco. Tobacco industry documents show that cigarette companies have cast smoking as an adult activity in order to appeal to kids, he says. Documents from cigarette maker Brown & Williamson in 1975, which were subpoenaed by the Federal Trade Commission, suggest targeting teens by presenting cigarettes "as one of the few initiations into the adult world" and as an "illicit pleasure."

Tobacco companies have a lot riding on vapor.

Sales of e-cigarettes could reach $3.5 billion this year, Herzog says.

While that market is modest compared with the $85 billion in sales from conventional cigarettes, Herzog predicts that e-cigarette sales will surpass those of what she calls "combustible tobacco" within a decade, Tobacco companies are likely to dominate the e-cigarette market, Herzog says, because of their financial strength and longstanding relationships with retailers.

Risks, benefits debated

Public health experts disagree about the risks and benefits of e-cigarettes.

The California Department of Public Health issued a warning last month urging people to avoid e-cigarettes because of their health risks.

The American Cancer Society has expressed concerns about the safety of e-cigarettes in light of a new study, published in January in The New England Journal of Medicine, that found e-cigarettes produce high levels of formaldehyde, which causes cancer.

Nicotine can be especially harmful to children and pregnant women, says Brian King of the Centers for Disease Control and Prevention.

harmless water vapor," King says. "Clean air should be the standard, whether that's air free from secondhand smoke or the aerosol from an e-cigarette product."

Other public health advocates say e-cigarettes have the potential to help smokers quit. Although there is no long-term data to show their effectiveness, e-cigarettes seem to work at least as well as other nicotine replacement products such as patches and gum, says Thomas Glynn, a consulting professor in cancer prevention at Stanford University.

"The scientific evidence is still pretty sparse," Glynn says. "There are so many kinds of e-cigs, it's difficult to make any kind of statement about them." Still, he says, "Some people – although probably not the revolutionary number that the e-cig enthusiasts predict – will stop smoking because of them."

A December review by The Cochrane Collaborative, an independent organization that analyzes health research, found evidence from two studies that e-cigarettes can help smokers quit for at least six months, but it described the quality of the evidence as low because it was based on only two clinical trials.

To Glynn, it would be a shame to tax or regulate e-cigarettes out of existence if they have the potential to help people quit smoking. While nicotine is harmful, it's less dangerous than conventional tobacco, which kills more than 480,000 Americans a year.

He says, "We should be focusing all of our efforts on helping the nation's 42 million cigarette smokers, and youth who may start using cigarettes, to stop or not start at all."

Pertschuk, the former president of Americans for Nonsmokers' Rights, says states don't need to wait for more evidence to regulate e-cigarettes like tobacco.

"When we started really fighting the tobacco industry on smoke-free air in the mid-1980s, it was an incredibly hard fight. I believe we had less evidence about secondhand smoke then than we do today about e-cigs," Pertschuk says. "One of the things the tobacco industry did 30 years ago was confuse the science. They found out that confusion was more effective than outright denial."

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