E-Cigarette Bill Exempts Devices From NC Tobacco Regulation
Bills are making their way through both the House and Senate sides of the General Assembly that would ban minors from smoking electronic cigarettes. But the bill has other effects too.
By Rose Hoban
A bill that would forbid the sale of e-cigarettes to minors under 18 has passed the Senate and is being considered on the House of Representatives side of the General Assembly.
But the bill has a catch: If passed as currently written, it would exclude e-cigarettes from being regulated as a tobacco product.
“The bill says that it wants to restrict the sale of products to minors,” said Peg O’Connell, a lobbyist who represents a number of public-health organizations. “But kids are currently not allowed to purchase e-cigarettes in North Carolina. Why have a bill that says that kids can’t purchase e-cigarettes?”
As written, the bill defines tobacco products as anything that “contains tobacco and is intended for human consumption.” But in the next sentence, the bill reads, “The term does not include a tobacco-derived product or a vapor product.”
Anti-smoking advocates say that if the bill passes as written, it would exempt e-cigarettes from tobacco taxes and create an ambiguous situation for places that are currently tobacco-free, like school campuses and hospitals.
Currently, non-cigarette tobacco products are taxed in North Carolina at a rate of 12.7 percent. Taxes on cigarettes are significantly lower.
“If the state law doesn’t include e-cigarettes, and someone challenges it, and the state law is ambiguous, what sort of legal ground does a hospital have to enforce its regulations?” asked Pam Seamans, head of the Alliance for Health.
“Similarly with the public schools,” she said. “They’re required to post signs saying that tobacco products are not allowed on campus. But if they’re not included in the “definition of tobacco products” for North Carolina, then there’s room for interpretation that e-cigarettes could be allowed on campus.”
Rep. Jim Fulghum, (R-Raleigh), a neurosurgeon who is a freshman legislator, sponsored the bill on the House side.
He said he was asked to sponsor the bill in the House after work had been done in the Senate. Once the bill got introduced, he was made aware of the language that would exempt e-cigarettes from being defined as tobacco products.
“I mean, the whole purpose of it was to keep minors from getting e-cigarettes,” Fulghum said.
He said he doesn’t know who wrote the original language on the bill, but said he believes representatives from the tobacco industry were involved in drafting the Senate bill.
“I don’t know if Reynolds is running a fast one; I don’t think they are,” Fulghum said. “But it derives from their own language, I’m quite sure.”
New technology, old effect
E-cigarettes are battery-powered devices that often look a lot like traditional cigarettes – complete with glowing tip – and have a cartridge filled with a nicotine-containing liquid. The liquid gets heated, creating a vapor. Instead of smoking, the fumes are “vapid,” absorbed into the lungs.
“When people inhale an e-cigarette, it’s like an asthma inhaler; it takes nicotine into your lungs and then into the rest of your body,” O’Connell said.
E-cigarettes are still a small part of the market, but are rapidly growing in popularity. Originally marketed in the U.S. by the Chinese manufacturers that created them, those small companies are now being bought by larger American tobacco firms.
Reynolds acquired the Vuse brand, and Lorillard acquired e-cigarette maker Blu last year. Just last month, Altria, formerly Phillip Morris, announced it was getting into the business.
Many companies have been marketing e-cigarettes as a device to help smokers quit. They deliver some nicotine, while still satisfying the behavioral and physical urge for something in a smoker’s hand or mouth.
Stanley Glantz, a professor of medicine at the University of California, San Francisco and a national tobacco-control advocate said the early research shows that many smokers are using e-cigarettes to supplement their nicotine consumption, rather than to quit.
“The dual use is already well documented,” Glantz said. Studies indicate, he said, that between 60 percent and 85 percent of smokers use both the e-cigarettes and conventional cigarettes.
“My guess is that what we’ll find when the dust settles is that e-cigarettes will effectively keep people smoking conventional cigarettes.”
Enthusiasts of e-cigarettes argue that the devices are more purely nicotine, without the thousands of toxins created by burning tobacco, paper, filters and other components of cigarettes.
Glantz acknowledges that e-cigarettes emit somewhat lower levels of toxins than conventional cigarettes.
“But,” he said, “a conventional cigarette is just enormously toxic, so the fact that they’re less toxic is a semantic difference. It’s the difference between jumping out of the 15th story instead of the 100th story of a building.”
A meta-analysis done by the Cochrane Collective on nicotine replacement therapy has shown that combining nicotine replacement with counseling or coaching is more effective than nicotine replacement alone.
Research on whether e-cigarettes have similar second-hand effects as regular tobacco products is now underway. Rep. Fulghum said he’s not convinced there’s a second-hand issue.
“I know that is a cosmetic issue,” Fulghum said. “I think the tar and nicotine are two different things.”
Fulghum talked about the prospects of smokers using e-cigarettes in settings such as restaurants where smoking is currently banned and said he felt comfortable with the idea.
“I don’t know that the vapor has any odor, which is objectionable to most people who have been around that kind of thing,” Fulghum said. “I assume the restaurant owner could make any rule that they want to make, and that’s probably exactly what they’ll do. Certainly, there’s no health issue there.”
Glantz said the preliminary data show otherwise.
“My guess is that, based on what’s out there now, which is limited, that the consensus that will emerge over the next few years is that these things are not good for quitting smoking, that they do pollute and cause second-hand exposure,” Glantz maintained.
Déjà vu all over again
For many anti-tobacco advocates, the fight over e-cigarettes is feeling very familiar.
“The tobacco companies are doing this all around the country,” said Glantz. In the past, he said, tobacco companies actively recruited doctors such as Fulghum to present bills in state legislatures.
“Bills like this are being introduced,” Glantz said, “and the strategy is just like in North Carolina: to bury language in an innocuous youth-access bill.
“This is the place where the marketing machine, which is sophisticated and aggressive, is way out ahead of the public-health response, which is deliberative and science-based.”
During a Senate committee debate earlier this month, Sen. Josh Stein (D-Raleigh) proposed an amendment to include e-cigarettes and other tobacco products in North Carolina’s universal definition of tobacco products. The amendment failed on a voice vote, and the bill passed with little debate.
Both O’Connell and Glantz said one of the problems is that e-cigarettes are so new that there hasn’t been time for definitive science to be completed on them. As a result, the Food and Drug Administration – which has federal jurisdiction over the regulation of tobacco products – hasn’t made a final determination on the devices.
“So the tobacco companies are trying to get laws on the books before the slow, grinding scientific process finishes,” said Glantz, adding that a lot of research is now underway.
“The FDA tried to do the right thing a few years ago, when it ruled that e-cigarettes are delivering a drug,” he said. “But the e-cigarette people sued and said ‘we’re tobacco products, so you need to regulate us under the tobacco law.’”
He said the FDA is caught between regulating e-cigarettes as tobacco products or as a therapeutic product to help smokers quit.
Meanwhile, e-cigarette sales are on the rise. E-cigarettes accounted for about $500 million in sales last year, and analysts expect that tally to grow quickly.
“The purpose of all these products is to deliver nicotine, so why should they be treated differently?” asked Seamans. “If it walks like a duck and talks like a duck, it’s a duck.”