By Stephanie Reid
Vaping” is a term
few would have recognized just 10 years ago. However, given the vast body of
public information supporting the notion that traditional cigarettes are a
deadly combination of carcinogens and addictive additives, many smokers turned
to the novel electronic cigarette (e-cigarette), which provides the
sought-after nicotine of a cigarette without the harmful smoke (though the jury is still out on how safe they actually are). In its
basic form, an e-cigarette provides the user with a nicotine-laced vapor
(hence, “vaping”), which the user then inhales like the smoke of a tobacco
cigarette.
However, unlike
the traditional cigarette—which is pretty much banned in public spaces
everywhere in the United States—the laws and restrictions that apply to vaping
have been much less clear. Is it considered smoking? Do smoke-free zones
include e-cigarettes? Can e-cigarettes be sold to minors? These questions, and many more, have
puzzled users and lawmakers alike. Fortunately, the US Food and Drug
Administration (FDA) provided somewhat clearer restrictions on May 5, 2015,
releasing a 499-page regulatory guide governing the sale and use of
e-cigarettes.
E-cigarettes muddle the rules
By and large, a
healthy percentage of smoke-free laws were enacted in the 1990s and early
2000s—well before the advent of the e-cigarette. Accordingly, these statutes
were not drafted with vaping in mind. For example, the Annotated Code of
Maryland (Section 2-106(b)(4) and 5-312) defines “smoking” as follows:
“Smoking” means to
use or carry any lighted:
(a) Cigar;
(b) Cigarette;
(c) Pipe; or
(d) Other tobacco
product of any kind.
For the
e-cigarette smoker, this statute inevitably leads to confusion as to whether
vaping is, in fact, a form of smoking under the law. There is no explicit
inclusion of an e-cigarette in the list of banned products. Also, the statute
refers to a device that is “lighted,” as opposed to the electronically powered
e-cigarette.
The inception of
e-cigarettes followed the enactment of federal policy prohibiting the sale of
cigarettes to minors, leaving a gaping legal loophole as to whether children
can lawfully purchase and/or use electronic cigarettes.
States take a stand
Over the past
several years, a number of states took the initiative to expressly address the
issue of vaping within the context of statutory smoking bans, with the
following states specifically including “e-cigarettes” in the list of banned
products in “100 percent smoke-free venues”:
- Connecticut
- Delaware
- Hawaii
- Maine
- North Dakota
- New Jersey
- Oregon
- Utah
In addition,
approximately 16 states enacted e-cigarette
regulations in one form or another, with many taking aim at specific areas
wherein e-smoking is not permitted. These restrictions range from a complete
e-cigarette ban on public school grounds (including college campuses) to
prohibitions against vaping on public transportation. Moreover, several Midwestern
states specifically banned e-cigarettes on department of corrections property,
while a handful of states enacted legislation to ban vaping on state
fairgrounds.
The federal government’s response
On May 5, 2016,
the FDA issued a “Final Rule” on the definition of “tobacco products” as listed
in the Food, Drug, and Cosmetic Act (which has historically regulated tobacco
use and smoking in general). In its ruling, the FDA reiterates the efforts it
has made to curtail the use of tobacco over the past several generations, as
along with the well-established correlations between smoking and a number of
deadly diseases. Likewise, the FDA asserted that it did not want to see yet
another generation of children grow up to become addicted to cigarettes, and
the department fears that the vaping trend may entice children to try smoking
as the next logical step.
Under the new regulations, which appeared in the Federal Register on May
10, 2016, all e-cigarettes must come complete with explicit warning labels as
to the dangers of tobacco use. Further, sale of e-cigarettes is limited solely
to adult consumers, and merchants can face hefty fines and penalties for
selling these products to minors. In addition, the FDA plans to implement the
following controls on the e-cigarette industry:
- Enforcement actions against misbranded e-cigarette products
- Pre-market ingredient disclosure
- Registration and licensure of e-cigarette manufacturing facilities
- Prohibition against free samples
The rules will
take effect in roughly August of 2016, and come after nearly 10 years of
unregulated e-cigarette sales and production. While many applaud the new rules
as necessary to protect public health, opponents contend that the FDA’s regulations will cost
thousands of hours and millions of dollars in compliance measures.
Particularly
ignited over the issue, the American Vaping Association stated that these laws
are not so much regulation as they are an outright prohibition, given the FDA’s
cost-prohibitive application and oversight procedures. Other critics charge
that the FDA rules will force small “vape shops” out of business, calling them
just one more example of government regulations that have untoward impact on small
businesses. Still others fear that the new rules will steer consumers back to
more-harmful traditional tobacco products, and thereby compound the US smoking
problem to levels worse than before.
The battle appears
set to continue for some time as the health impacts of these products reveal
themselves, and legislation adapts to take up the slack.
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