W ith the growing popularity of cigarettes and the way these - PDF document

> REGULATION FOCUS which discussed the regulatory class- Lawmakers Continue ification of e-cigarettes and other products “made or derived from E-Cig Regulatory Onslaught tobacco” and the jurisdictional line that should be drawn between “tobacco products” and “drugs,” “devices,” and Right from the gate, e-cigarettes have defied categorization. Various combination products, as those terms jurisdictions nationwide are approaching the innovative products with are defined by relevant laws. The court a wide ranges of sales restrictions. >BY BRYAN M. HAYNES held that e-cigarettes and other products made or derived from tobacco should be regulated as “tobacco products,” and W ith the growing popularity of cigarettes and the way these products were accordingly not drugs/devices e-cigarettes, federal, state, are sometimes marketed without health unless they are marketed for therapeutic and local regulators are warnings or age restrictions. Notably, purposes. The federal government increasingly restricting the use and sale between 2008 and 2010, the FDA made a decided not to seek further review of this of these products, and new regulatory determination that certain e-cigarettes decision, and the FDA is complying with restrictions are continually being were unapproved combination drug/ the jurisdictional lines established by announced. One trade association has device products. Based on this Sottera. Notwithstanding, the FDA has reported that e-cigarette makers have determination, the FDA detained and recently indicated its intention to issue been able to capture approximately 14 effectively prevented the e-cigarettes regulations covering e-cigarettes. Thus, percent of the 44 million tobacco users made by several companies from being any manufacturer, distributor or retailer in the United States, and this market is imported. One company challenged that of e-cigarettes must keep abreast of any expected to grow further. determination in court. of the FDA’s proposed enactments The U.S. Court of Appeals for the relating to e-cigarettes to ensure they WHAT EXACTLY ARE E-CIGARETTES? D.C. Circuit, in Sottera, Inc. v. Food & understand how any changes affect the Short for “electronic cigarettes,” e- Drug Administration, issued a decision sale, distribution, and use of e-cigarettes. cigarettes are essentially electronic nicotine delivery systems; they are most often shaped like cigarettes—although occasionally like cigars or pipes—and are designed to deliver nicotine to a user in the form of a vapor. Generally, an e- cigarette consists of a lithium battery- powered heating element and replace- able cartridges that contain nicotine or other chemicals, and an atomizer that, when heated, converts the contents of the cartridge into a vapor that a user inhales. E-cigarettes are considered to be non-combustible, given that they emit a vapor rather than smoke. Sometimes, they can be legally used where traditional tobacco products are banned, and various physician groups have defended the product, based on their opinion that e-cigarettes deliver nicotine without the combustion, tar, and numerous other chemicals found in regular cigarettes. FEDERAL CHALLENGES TO E-CIGS The Food and Drug Administration >The e-cigarette category is experiencing tremendous growth, both in terms of sales volume, (“FDA”) has, however, expressed and in brand proliferation. Pioneered by small startups, the market has now been joined by all concern about the lack of clinical studies three of the largest cigarette manufacturers. Specialty tobacco importer and brand developer on the potential health risks posed by e- Kretek Imports, Moorpark, Calif., has developed EZ Cig (above), as well as Cig2o entries. 52 SMOKESHOP August 2013

> REGULATION FOCUS STATE, LOCAL REGULATORY ENACT- smoking of e-cigarettes in certain public minors and prohibits the distribution of MENTS AFFECTING E-CIGARETTES places was introduced in 2013, but has free samples of such products in a public States and localities have been increas- not passed. place. The use of such products is also ingly enacting regulatory limitations on prohibited on the grounds of any public both the sale and use of e-cigarettes. Kentucky: Legislation, which has not yet educational facility. Various state attorneys general have also passed, was introduced in 2013 to brought lawsuits alleging that e-cigarette regulate smoking of e-cigarettes indoors; New Jersey: State laws prohibit the use of distributors have violated state law by however, local bans of indoor smoking of electronic smoking devices in all enclosed selling to minors or making unsub- e-cigarettes are already in effect in Bullitt indoor places of public access as well as stantiated health claims. Several of the and Madison Counties. in workplaces. state and local regulatory restrictions and administrative pronouncements related Massachusetts: Local ordinances in affect New York: Local ordinances in Cattar- to e-cigarettes include: in South Hadley, North Attleboro, and augus County ban e-cigarette sales to Somerset restrict the indoor use of minors and prohibit the use of e-cigarettes Arizona: State law prohibits minors from electronic cigarettes as well as their sale in public places and workplaces. Suffolk buying or possessing e-cigarettes. to minors. County has similarly enacted an ordinance which prohibits the sale of e- California: State law prohibits the sale of e- Minnesota: State laws regulate and tax the cigarettes to minors and which prohibits cigarettes to minors. sale of e-cigarettes and impose criminal “the use of e-cigarettes and like products penalties for their sale to minors. in public places where traditional forms of Colorado: E-cigarettes have been classified smoking are already disallowed.” as a tobacco product by Colorado law, Missouri: State law bans e-cigarette use, and thus the sale and use of e-cigarettes except in private homes, vehicles, and Oregon: An agreement was reached by minors is is prohibited. some hotel rooms. between the Attorney General and an e- cigarette manufacturer prohibiting the Connecticut: State law prohibits the use of New Hampshire: State law prohibits the sale and distribution of manufacturer’s e-cigarettes by minors. A bill to regulate sale of e-cigarettes and liquid nicotine to electronic cigarettes in Oregon. 55 August 2013 SMOKESHOP

> REGULATION FOCUS Washington: Local ordinances in King New York City Targets E-Cigs with “Defacto Ban” County (which includes Seattle) ban the Despite a May 2, 2013 meeting of the New York City Committee on Health, dur- use of e-cigarettes in all public places. ing which a representative from the NYC Department of Health & Mental Hygiene stated that the department had no intention of trying to regulate e-ciga- Given the growing debate regarding rettes, drafts of three tobacco bills were leaked in August showing that Mayor e-cigarettes, legislation that seeks to tax Michael Bloomberg’s administration was working to explicitly categorize electron- and regulate the sale and use of e- ic cigarettes as tobacco products and enact a sweeping ban on flavored e-cigs. cigarettes is predicted to be introduced One of the bills would raise the legal age to purchase all tobacco products to and enacted in an ever-increasing 21, while another would prohibit the display of any cigarette advertising in stores. number of jurisdictions in the future. A third bill would prohibit the use of tobacco coupons, create a $10.50 price floor Manufacturers, distributors, and retailers for cigarette packs, and increase the fines against those selling illegal cigarettes. of e-cigarettes must carefully monitor the Initially the bills, drafted by the Health Department and introduced into the laws at the federal, state, and local levels Council at the request of Mayor Bloomberg, didn’t reveal the city’s position on to ensure that they are in compliance. electronic cigarettes. Menthol and “tobacco flavored” appear to remain Many laws impose substantial mon- unregulated under the bills, but the sale of flavored e-cigs would be relegated to etary—and in some cases even criminal— nearly extinct “tobacco bars,” resulting in a defacto ban, says Dr. Michael Siegel, a penalties for violations. As the category professor of Community Health Sciences at the Boston University School of Public continues to grow, detractors mobilize, Health and a supporter of electronic cigarettes as a lower risk smoking alternative. often ignoring the inherent differences from combustable tobacco. Utah: State laws regulate the sale, gifting, not fall within the definition of “smoking” Troutman Sanders Tobacco Team, and distribution of e-cigarettes by manu- for purposes of the Virginia law that Troutman Sanders LLP , 1001 Haxall facturers, wholesalers, and retailers. prohibits smoking in a variety of locations, Point, Richmond, Va. 23219, Tel: (804) including elevators, public school buses, 697-2206, Fax: (804) 697-1339, Web: Virginia: The attorney general issued an and the interior of public elementary, www.troutmansanders.com, Email: official opinion that e-cigarette use does intermediate and secondary schools. bryan.haynes@troutmansanders.com. 56 SMOKESHOP August 2013