Electronic cigarette companies are quietly winning the war on regulation by successfully lobbying state legislatures to exclude them from tobacco control laws.
Public health officials and smoke-free advocates say industry-sponsored bills have the veneer of public health—with provisions about banning sales to minors—but avoid the more stringent rules other tobacco products must abide by.
"These are Trojan Horse bills that look good but leave gaping holes in public health regulations," said Vince Willmore of Tobacco Free Kids. "They result in different penalties and enforcement from regular tobacco products, they exempt e-cigarettes from being included in smoke-free air laws, and some exempt manufacturers from state taxes as well."
E-cigarette companies—which manufacture the battery-powered devices to mimic smoking by vaporizing a nicotine-laced liquid—say they are concerned for public health and that their devices are safer than traditional cigarettes so they shouldn't be lumped in with existing tobacco laws.
Opponents of the laws see it another way: that they'll undo decades of public health work. The lax rules could result in normalization of a potentially harmful activity, encourage smokers to take up the habit, and expose people to second-hand vaping, of which we don't know the impact.
The World Health Organization has called e-cigarettes safety "illusive", since the ingredients they contain are not always disclosed and there is not "adequate data on emissions." When it comes to helping people quit smoking, they also say the science is not conclusive. The US Centers for Disease Control takes a similar stance: that there is not enough evidence to understand the health impact of vaping. They warn of the potential for nicotine addiction, poisoning, and call for more robust regulation.
"These tactics to undermine effective policies stand to make smoking and the behavior of smoking socially acceptable again," said Cathy Callaway, associate director of state and local campaigns for the American Cancer Society Cancer Action Network. "If the industry can keep people addicted to tobacco products, they'll be more likely to continue to purchase products, and the industry makes money."
The battle between public health advocates and industry is going on in various states right now
The US has been called a "wild west" for e-cigarette regulation since vaping is not currently regulated at the federal level. Right now, the FDA is moving to bring e-cigarettes under its jurisdiction through the Tobacco Control Act. While that's in the works, states have been filling the gap with their own rules and regulations.
So far, 38 states have moved to ban e-cigarettes for minors. But only a few—Colorado, Nevada, North Carolina, South Dakota, West Virginia, and Wyoming—define e-cigarettes as tobacco products.
Of the remaining states that restrict sales to minors, 13 states explicitly exempt e-cigarettes from inclusion as a tobacco product and 19 define them in their own separate category. This means e-cigarettes don't face the same stringent restrictions regarding packaging, marketing, and second-hand exposure around regular tobacco products.
Several states are still weighing legislation. In Michigan, a bill passed through the house and senate last spring which stipulated that e-cigarettes cannot be sold to minors—but also that e-cigarettes are not tobacco products.
By doing that, they offer states a very clear way to limit sales to kids on terms that manufacturers prefer and that make it difficult for people to vote against the bill.
"These bills are written in such a way that was very hard for members of the legislature to vote against them because of broad public support for restricting sales to minors," said Dr. Matthew Davis, Michigan's chief medical officer, who testified at both the house and senate committees against the laws in Michigan.
"I told them they did the right thing to restrict sales to minors of these products," said Davis, "but did not do so in a way that would optimally protect the public’s health."
Michigan Gov. Rick Snyder could veto the legislation; he has previously said it might be more appropriate to use existing tobacco legislation to regulate e-cigarettes.
In other states, some public health advocates are having victories. Missouri Gov. Jay Nixon recently vetoed a bill similar to the proposed legislation in Michigan. In his veto letter, he described the bill as "harmful to Missourians" because it "creates a facade of regulation." "
He was also concerned that the e-cigarette industry's involvement in drawing up these state laws might still have an effect on the FDA's forthcoming inclusion of e-cigarettes under the Tobacco Control Act.
As Gov. Nixon wrote in his letter, "At worst, this prohibition may be part of a larger strategy by the tobacco industry to stop the implementation of the FDA regulations or ensnare them in protracted litigation."
Even when the FDA's rule is passed, it won't actually apply to traditional areas of state regulation, such as smoke-free laws and tobacco taxes. These industry-backed bills will have a lasting impact on public health at the local level, particularly in places that haven't enacted municipal legislation to deal with vaping in public places. (So far, only a few big cities across the US have added e-cigarettes to their smoke-free laws.)
E-cigarette companies boast about their support of the bills
E-cigarette companies argue that these state regulations are good-faith efforts to keep kids safe.
"Not only have we supported state legislation to prevent the sale of e-cigs to youth, but we have also put in place a robust age verification process online, similar to retail," Jason Healy, the president of Blu eCigs, said in a statement.
"When it comes to marketing," he added, "we have voluntarily adopted strict marketing restrictions, such as limiting our ad placement to media and events where the target audience consists of at least 85 percent adults."
Willmore at Tobacco Free Kids is skeptical of these efforts. He said they contradict the steps taken by industry to hook people while they are young.
"E-cigs are copying the tobacco company's playbook to market to kids. They're using celebrity endorsements, cartoon pitches. They're sponsoring auto races and music festivals. They're using this wild array of sweet flavors like cotton candy and gummy bears that have been banned from regular cigarettes."
Blu—which has been among the companies pushing for these state laws—even included an ad in this year's Sports Illustrated swimsuit issue, which showed a Blu logo in the middle of a tiny bikini bottom. "It's hard to come up with an ad," said Willmore, "that would be more appealing to teenage boys."