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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.

A man smokes an e-cigarette. Often the devices are made to look like traditional cigarettes. Photo by Taylor Dahlin, flickr creative commons

A man smokes an e-cigarette. Often the devices are made to look like traditional cigarettes. Photo by Taylor Dahlin, flickr creative commons

“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.

Some e-liquids from Liberty Flights and  new 510N e-cigarette device. Photo by wstryder, flickr creative commons

Some e-liquids from Liberty Flights and a new 510N e-cigarette device. Photo by wstryder, flickr creative commons

“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.

NJoy e-cigarette pack. Image TheSmokersAngel, flickr creative commons

NJoy e-cigarette pack. Image by TheSmokersAngel, flickr creative commons

“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.”

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  • KJ

    It seems that IF there is any inherent harm, it’s to the USER. So, why are the control freak “DO GOODERS” trying to also ban something that has no effect on them ? Vapor can harm no one around the user & does NOT have any odor or ill effects on anyone standing/sitting near the user. For these products to be taxed at such a high rate & banned from public use, is simply MORE discrimination & exertion of control issues among the **** jerks.

  • I’ve known lots of people to quit smoking with e-cigs. They don’t harm anyone and the vapor has no odor. Why can’t they leave well enough alone and stay outta peoples lives.

    • michele

      There’s no money in that..

  • mrmoto

    An E-Cigarette is now also called a Personal Vaporizer (PV) because while some PVs do resemble cigarettes, many do not. None of them produce smoke. They produce vapor. The only harmful ingredient in the vapor is nicotine and by itself nicotine at these doses is roughly equivalent in toxicity to caffeine. The liquid that is used in these devices is composed of propylene glycol (not to be confused with ethylene glycol or antifreeze), vegetable glycerin, water, nicotine and flavoring. The rest of the ingredients are generally regarded as safe. Compare this to the list of more than 4000 harmful substances in cigarettes.

    The vapor produced is almost odorless, dissipates quickly, and is only produced when the device is actually in use. It produces no lingering odor. You would not be able to tell whether a person habitually used a PV by their smell.

    These devices have proven to be more effective at getting people off cigarettes than any other method. If you truly care about your citizens, you would encourage their use as an alternative to smoking. Instead instead of instituting unreasonable regulation that has no rational basis and in fact will likely do more harm than good. It’s scant encouragement for a smoker to switch to the much safer PV, if you make it just as inconvenient as smoking.

    • Travis Todd

      What do you mean the other ingredients? there are 4 main ingredients PG, VG, Nic, and Flavoring. In my home made liquid I only have VG and Flavoring, both of which you can find in your local Wal Mart Baking section.

  • We do need such kind of law by which minors can’t their hands on electronic cigarette, this device is much safer than the real ones but still not something kids can use.

    • Not something kids can use? Why? There are no carcinogens involved. NON-nicotine juice is readily available, notwithstanding that nicotine itself is chemically no worse nor addictive than caffeine. And NO ONE is trying to make caffeine use illegal in minors!

      Most importantly, vaporized propylene glycol is a bactericide for airborne diseases. The technology for propylene glycol as an air sterilizer has been around since the 1930s — the PV is nothing more than an air sterilizer in miniature form.

      I see a future where respiratory diseases are dramatically reduced in children, BECAUSE of vaping. But to get there, we have to get off of this misguided idea that PVs have anything to do with tobacco or cigarettes.

      Annotated research here:

  • Cprice

    Should you regulate and hyper tax a local band or pop star that uses a fog machine in their show? What about the food that you give your dog? What about the food you eat?

    NO! and GTFO!

    The most common mixture of ingredients in the vapor used with e-cigs is:

    Food grade: Propylene Plycol
    Used in food and other human consumables including fog machines.
    Propylene glycol is generally recognized as safe (GRAS)
    by the FDA.

    Food grade: Vegetable Glycerin
    Used in food and other human consumables.

    Nicotine: Its not for kids!

    The lobbyist Peg O’Connell doesn’t seem to have much to say except “why do we need this bill.” Its strange when a lobbyist says we don’t need something… Right? Almost suspicious… Well anyway… Wrong! We do!

    Mr.Glantz is FOS and seems to have a scientific house of cards with his out of date analysis. He doesn’t know any better, he’s a “professor form California”. As if being from
    California makes him more creditable.

    I wonder where all those extra tax dollars go? humm Seems like there is more to this……….

    This is a text book scare tactic! Don’t believe the spin!

    PASS THE BILL – Keep kids off nicotine. Stop hyper taxation on e-cigs.

    Leave the adults trying to be healthier alone. Also don’t you think more people might stop smoking cigarettes if you lifted the tax on the safer alternative.

    Wow it would help the online world of e-cigs with no tax to populate North Carolina with brick and mortar stores. That means more money in the North Carolina tax bucket and a great convenience to e-cig consumers. Everyone wins if the Bill is passed.

    Don’t be so greedy!

  • kaige

    Most college campuses and Hospitals are ok with ecigs and dont mind people using them. If its a problem they should say no ecigs, which is specific enough.

  • David

    This is so sad. R.J. Reynolds wants to buy government power to force competition out of business. At minimum, they want e-cigarette users to pay as much for a non-carcinogenic alternative as those who smoke their traditional tobacco products that kill 6 million people world-wide.

    Any politician that supports this tax cares more about lining their campaign coffers with tobacco lobbyist donations than allowing people a cheaper alternative to stop smoking.

    But hey, the sheep will accept it because it’s for the CHIIIILLLLLDREN.

    When are we going to levy a 500% sales tax on flavored vodka and other alcohol products?

    Wake-up people, we have bigger enemies that hate our freedom more than cave dwellers in foreign countries.

  • Richard Snolly

    A passed proposal would require hosts to fill out standardized forms to provide information about city regulations that would apply to guests, smoking regulations and social host ordinance, among others.

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