Policy: Technology

States try to tamp down e-cigarettes

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States and local communities aren't waiting for the federal government to establish rules for electronic cigarettes, enacting their own laws to regulate, restrict and tax the increasingly ubiquitous battery-powered inhalers.

At least 34 states have banned the sale of e-cigarettes to minors, and about 10 states and more than 170 communities have passed laws restricting their use in public places.

Many of the new laws and ordinances have been enacted in recent weeks, including the nation's three largest cities ushering in some of the most comprehensive e-cigarette regulations to date.

"This is a huge issue," said Karmen Hanson, program manager for the National Conference of State Legislatures. "With the absence of [federal] regulations on e-cigarette … products, states have done what they feel is best for their citizens right now."

The Food and Drug Administration in April proposed new restrictions to regulate e-cigarettes, including banning their sale to minors and requiring device makers to report product and ingredient listings. The proposal also would bar e-cigarette companies from marketing their products as a healthier alternative to traditional cigarettes unless the FDA confirms that scientific evidence supports the claim.

Yet the FDA proposal is subject to a 75-day review, with no timetable announced for its implementation. And many local and state officials say the agency has been too slow to respond to the e-cigarette craze.

So New York City, Los Angeles and Chicago last month instituted their own rules making e-cigarettes subject to many of the same regulations as tobacco products, including banning them from restaurants, bars and other public places.

Proponents of such regulations say they're aimed at preventing the re-acceptance of smoking as a societal norm. E-cigarette critics also worry teenagers will be attracted to the devices, with their candy flavorings and celebrity endorsers.

Federal law prohibits the sale of tobacco cigarettes to anyone under 18, but until the FDA acts on its proposed rules, there is no such restriction for e-cigarettes — inhalers that instead of burning tobacco vaporize a mixture typically composed of liquid nicotine, propylene glycol and other chemicals. The limited federal oversight has led to a boom in the e-cigarette industry, with sales doubling annually since 2008, reaching at least $1.5 billion last year.

Since e-cigarettes produce only water-based vapor — not tobacco-laced smoke — most researchers say they're safer than traditional cigarettes, although few studies have been conducted on their long-term health risks.

And e-cigarette supporters say the devices are an effective tool in helping smokers of traditional cigarettes kick the habit.

But establishing a legal definition for e-cigarettes — let alone drafting rules regulating them — has been a challenge for governments at every level.

Since the devices don't contain tobacco, state lawmakers have debated whether to tax them at rates similar to traditional cigarettes, which are among the most heavily taxed items on most state books.

Minnesota is the only state to follow this policy, taxing e-cigarettes at 95 percent of their wholesale price. And New Jersey could be next, with Gov. Chris Christie's proposed budget anticipating $35 million in new revenue by applying a $2.70 per-pack tax on traditional cigarettes to the electronic version.

"New products of any type, or new services of any type, can create a plethora of regulation questions," Hanson said. "It can be tricky just defining what something is. It's like describing an elephant if you've never seen an elephant ... it can look like a bunch of different things."

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Sean Lengell

Congressional Correspondent
The Washington Examiner