It's here, folks. The battle royale between the regulators and the people over e-cigarettes is upon us. It started a few years ago, calmly, but with New York City banning vaping in public places, the knives are about to come out.
It's widely understood that 2014 will be the year when local and federal governments hunker down to figure out this e-cigarette situation. Basically, the battery-powered little devices have enjoyed free reign since they first started popping up on the market around 2006. Nobody really knew what to do with e-cigarettes at first. Are they a medical device, a tool for smoking cessation? Should they be treated like a tobacco product even though they don't contain any tobacco? Should they be sold to kids?
Initially, the federal government—more specifically, the Food and Drug Administration—attempted to regulate e-cigarettes as if they were a drug delivery device. That subjected the devices and accessories to the restrictions of the Food, Drug, and Cosmetics Act (FDCA), and the FDA's Center for Tobacco Products arm would be responsible for enforcing the regulations. But that didn't take. After a series of legal battles, federal courts determined that e-cigarettes were not medical devices, leaving the FDA no authority to regulate them unless they're marketed specifically as a therapeutic tool, not unless they managed to win a Supreme Court case. This gave e-cigarette companies a lot of latitude.
The FDA isn't giving up, though. The agency is expected to unveil a plan for how it could regulate e-cigarettes as tobacco products, but it hasn't actually laid down any rules yet. In the meantime, it's up to state and local governments to make the laws. It's been a slow process, but the number of states and cities issuing bans on e-cigarettes is approaching a tipping point.
This New York City ban might just be it. The new bill passed the City Council almost unanimously and will go into effect in four months, after Mayor Bloomberg signs it into law. Rather than issuing a new ban, however, the bill simply extends the existing restrictions on cigarettes to e-cigarettes. So anywhere you're not allowed to smoke a cancer stick, you're now not allowed to smoke an e-cigarette. The various rules that dictate how cigarettes are sold and advertised will also be applied to the e-cigarette industry. Meanwhile, similar bans on vaping in public are already in effect in Arkansas, New Jersey, North Dakota and Utah. Similar legislation is also under consideration in major cities like Chicago and Los Angeles. About half the states in the country have issued laws restricting the sale of e-cigarettes to children. And there are plenty more moving towards regulation.
This obviously pisses some people off. It's not just the Ayn Rand-reading libertarians, either. Some health experts are pushing back against the regulations, arguing that e-cigarettes are a valuable and effective method to help people quit smoking real cigarettes. E-cigarettes could be saving lives, they say—so why make it more difficult for people to buy them?
Well, there's the kids thing. In the half of the country without restrictions on e-cigarettes, teenagers can buy e-cigarettes freely and vape their little hearts out. E-cigarette cartridges are being sold in all kinds of kid-friendly flavors, too, like fruit punch and bubble gum. And some e-cigarette companies are even using cartoons to advertise the products. It appears to be working, too. A recent Centers for Disease Control survey showed that e-cigarette use more than doubled from 4.7 percent to 10 percent from 2011 to 2012.
Let's not forget that jury's still out on the health effects of e-cigarettes, though they're packed with nicotine which is most definitely very addictive and very bad for children. Some folks also worry that teens who pick up the e-cigarette habit will eventually turn to real cigarettes and the host of health problems that come with.
One widely accepted argument for treating e-cigarettes like real cigarettes is more symbolic, though. Cities, states and even the federal government have spent years and billions of dollars on anti-smoking campaigns even while allowing e-cigarettes free rein stands to undermine all those efforts. Sure, folks aren't smoking with fire, clouding up restaurants, and giving people heart attacks, but even the presence of people puffing on something in public sends a message that suggests smoking is okay. E-cigarettes also make it more difficult to enforce the existing ban on smoking. In New York, bartenders have been complaining that they often can't tell when someone is smoking an e-cigarette or a real cigarette inside.
I can almost hear the e-cig enthusiasts now: "But vaping is totally harmless! You can't even smell it! It's just water vapor!" But let's be honest. It's a little bit gross. If you've ever walked through a cloud of second-hand vapor, you're breathing in tiny little water droplets that were just inside some stranger's body.
The government doesn't regulate things based on how gross they are, but, clearly, the other concerns matter enough for it to take action. Who knows when the feds will finally crack down, though. It's likely that the FDA is waiting for some research on the health effects of e-cigarettes to come out so they don't get their asses kicked in court like they did a few years ago.
Regardless of what the FDA does, though, it's clear that local governments are taking the lead. And if you remember correctly, New York City has a reputation for starting trends when it comes to stuff like this. After all, Gotham was one of the first cities to ban smoking, and now it's banned pretty much everywhere. Others are sure to follow this time around, too.