States Moving Ahead With Electronic Cigarette Rules

While an FDA ruling on e-cigarettes is on the horizon, states are moving ahead with their own plans.

October 31, 2013

WASHINGTON – Lawmakers in dozens of states are considering regulating e-cigarettes, evaluating who should be able to use the product, how it should be taxed, and what it is, the Washington Post reports.

Whether the products should be viewed as tobacco products or as something distinct has yet to be determined, a critical assessment as states decide whether they should be subject to the same indoor bans as regular smoking materials.

Health advocates are urging lawmakers to treat e-cigarettes as regular cigarettes.

“We want them included in the definition of tobacco product. It’s really one of the easiest ways to handle them,” said Thomas Carr, director of national policy at the American Lung Association. “Nothing else has to change, really.”

The e-cigarette industry says such a classification stigmatizes their product, which they maintain is a safer alternative to cigarettes.

“Our goal as an industry is to distinguish ourselves from cigarettes, and there’s a very important reason that we want to be defined at the state level not as a tobacco product,” said Eric Criss, president and chief executive of the Electronic Cigarette Industry Group. “We believe the product is a good alternative, and the goal should be to move people down the risk ladder from cigarettes.”

Utah, North Dakota, Arkansas and New Jersey, and the District of Colombia have sided with the American Lung Association by including e-cigarettes in indoor smoking bans.

Nine other states have lumped e-cigarettes into the tobacco product category, while California restricts online e-cigarette advertising.

Several other states have followed the e-cigarette industry’s lead and define the products as something other than tobacco products. Still other states define them as “vapor products.”

Since 2009, 25 states and the District of Columbia have passed measures defining and regulating e-cigarettes. Those states all restrict sales of e-cigarettes to minors.

“This is a product intended for adult consumers. It’s marketed toward adult smokers,” said Cynthia Cabrera, executive director of the Smoke Free Alternatives Trade Association. “It’s not intended to be a gateway.”

Several states that have taken up e-cigarette legislation are seeking to tax them in specific ways. Minnesota defines them as an “other tobacco product,” subjecting them to a tax equal to 95% of their wholesale price, which makes their tax greater than those on a pack of regular cigarettes.

Meanwhile, lawmakers in Oklahoma and Utah tried to levy a tax on e-cigarettes equal to 10% of cigarette taxes, but those measures failed.

“The typical rationale for tax policy in the tobacco realm is to recover the social costs of those products,” said Bryan Haynes, a lawyer who represents tobacco industry clients at Troutman Sanders in Richmond. “If anything, there should be a different category that speaks to the fact that e-cigarettes are fundamentally different from tobacco products.”

Several states are expected to take up e-cigarette legislation in 2014.

In the meantime, the Food and Drug Administration is considering its own rules and definitions for e-cigarettes. The proposed rule has already been sent to the Office of Management and Budget and the White House’s Office of Information and Regulatory Affairs for review, said Jennifer Haliski, an FDA spokeswoman.

If the FDA passes a ruling that conflicts with state law, the states would need to pass new tax rules or redefine e-cigarettes before they could tax them.

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