PIERRE, SD
A South Dakota legislative panel has endorsed a plan to ban the sale of electronic cigarettes to minors.
E cigarettes are battery powered devices that resemble traditional cigarettes. They heat a liquid solution, creating vapor that users inhale to get nicotine without the smoke of regular cigarettes.
The Senate State Affairs Committee voted 8 1 Monday to classify electronic cigarettes as a tobacco product and ban the sale of such products to anyone younger than 18. Anyone selling electronic cigarettes to minors could be charged with a misdemeanor punishable by up to 30 days in jail and a $500 fine.
Advocates of e cigarettes say they can help smokers quit tobacco, but some health advocates believe the inhalers can get people hooked on nicotine just like cigarettes.
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In a scene from the new season of the popular Netflix political drama House of Cards, the elegant Claire Underwood catches her soon to be vice president husband puffing an e cigarette.
“You’re cheating,” she says, referring to their efforts to quit smoking.
“No, I’m not,” Congressman Francis Underwood replies. “It’s vapor … addiction without the consequences.”
A Washington based drama with an implicit endorsement of “vaping” the practice of partaking in nicotine without burning tobacco?
It could have been ripped directly from the playbook of lobbyists working Capitol Hill and Washington regulators on behalf of the estimated $1.7 billion and growing e cigarette industry.
Eric Criss of the Electronic Cigarette Industry Group laughs off the suggestion that his Florida based organization, which recently opened a lobbying office in suburban Washington, orchestrated the House of Cards scene.
“No, we did not have anything to do with that product placement,” Criss says, or with the Golden Globe Awards gag last month where Julia Louis Dreyfus ostentatiously puffed a blue tipped e cigarette. (Pro “vaping” sites lit up with comments about the House of Cards moment, since the show has become almost synonymous with product placement.)
As e cigs continue to embed themselves in popular culture, lobbying efforts are heating up around the issue of how government will ultimately regulate the nascent battery powered nicotine delivery system. All eyes are on the U.S. Food and Drug Administration, which, in concert with the White House Office of Management and Budget, is expected to soon release a long awaited proposal for regulating e cigarettes.
Selling D.C. On A New Cig
Debate over the product’s health effects continue. A recent Bloomberg Businessweek cover on e cigs captured the discussion with this tagline “They’re new. They’re blue. But will they still kill you?”
Because e cigarettes don’t burn tobacco, cancer causing tar isn’t delivered to users’ lungs. But there are concerns that the electronic version could serve as a “gateway” to traditional cigarettes for young people, and that the full health effects of inhaling the nicotine vapor have not yet been studied.
The question occupying both ECIG, which represents small producers of e cigarettes, and tobacco giants like Reynolds American, which has a growing e cigarette subsidiary, is whether the FDA will seek to regulate the nicotine delivery system in the same manner as traditional products that burn tobacco.
“We’re focused not so much on the Hill but more on the regulators,” says Bryan Haynes, a partner and tobacco regulation expert at the large national law firm Troutman Sanders LLP and counsel for ECIG.
“We do want the public to have a comfort level that what the manufacturers say is in the product is actually accurate,” Haynes says. “At the same time, we do not believe that e cigarettes should be regulated in the same way traditional tobacco products are regulated.”
The 2009 Family Smoking Prevention and Tobacco Act includes restrictions on retail and online tobacco sales and limits on advertising and marketing to young people, and assesses user fees based on market share.
Criss, ECIG’s spokesman, says that most e cigarette producers, big and small, agree the product needs to be regulated to prevent its sale to minors, to control its ingredients, and to provide proper and accurate labeling.
He also acknowledges the concerns of anti smoking advocates who have “worked very long and hard to make smoking not look cool and this product looks like a cigarette, and has nicotine.”
“That is a real concern when it comes to kids,” he says, “but it is combusting tobacco that kills people.”
The “white hat” message that ECIG is using to persuade regulators and Congress is this, according to Criss E cigarettes can “move existing smokers down the ladder of risk.”
The Campaign for Tobacco Free Kids has another view. The group said this week that tobacco giant Lorillard Inc., in a Sports Illustrated advertisement for its e cigarette, directly targeted teenage boys.
The ad by Lorillard, which last year spent about $2.8 million lobbying for issues including e cigarettes, featured a close up of a model in a tiny bikini bottom emblazoned with the company’s e cigarette logo.
In a blog post on its website, the group called on the FDA to prevent such marketing, asserting that the ad “is just the latest example of how marketing for e cigarettes is using the same slick tactics long used to market regular cigarettes to kids.”
The organization is on record, however, as saying that e cigarettes could benefit public health if responsibly marketed.
But four Democratic senators announced Wednesday that they have introduced legislation to prohibit the marketing of e cigarettes to children and teenagers. The bill would allow the Federal Trade Commission to set marketing standards and state attorneys general to enforce the rules.
“Tobacco companies advertising e cigarettes with flavors like bubblegum and strawberry are clearly targeting young people with the intent of creating a new generation of smokers,” said Sen. Richard Blumenthal, D Conn., one of the bill’s sponsors.
The senators pointed to studies, including one by the Centers for Disease Control and Prevention, showing a sharp spike in the use of e cigarettes by high school students.
Big Tobacco, New Market
David Howard is spokesman for Reynolds American, the parent company of subsidiaries that include the R.J. Reynolds Tobacco Co., maker of Camel, Pall Mall and Winston cigarettes, and the relatively new R.J. Reynolds Vapor Co., which produces the VUSE e cigarette.
“We are in this business, and we are going to lobby on issues that affect our business, and we are going to have our side represented,” Howard says. “These products are different from traditional tobacco products. There’s no tobacco. There’s no combustion.”
The company, which in 2013 spent about $3.3 million lobbying on issues including e cigarettes, introduced statewide distribution of VUSE in Colorado last July. Distribution went statewide in Utah in January, and the company is taking steps for a national rollout, he says.
“We believe there is significant potential in the category,” Howard says. “Some analysts say it could be a $5 billion industry in the next handful of years.”
When the FDA releases its proposed regulation, it simply begins a lengthy comment period, one that could very well spawn litigation. Howard mentions that R.J. Reynolds successfully challenged a marketing provision in the 2009 Tobacco Act after it was proposed.
So while e cig lobbying has already been kicked up a notch, the real fight begins when the FDA makes its regulation proposal any day now.
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