The Food and Drug Administration announced today that it wants to regulate electronic cigarettes. This isn't surprising. But there's considerable debate about what those regulations should look like. If history is any guide, the life of your average vaper (vapist? vapethusiast?) is about to get a whole lot harder.
Judging by the proposals submitted for public comment, the FDA wants to treat electronic cigarettes exactly like those olde timey cigarettes our grandparents used to smoke. But the question is, should they?
The FDA didn't regulate tobacco until 2009. That's not a typo. The FDA had no regulatory authority over tobacco until Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009.
Of course, the FDA tried to regulate tobacco before that. But after attempting to exert those powers in 1996, Brown & Williamson (then the makers of Lucky Strikes and Kools) filed suit. They made it all the way to the Supreme Court in 2000, where the court found that Congress had never intended for the FDA to regulate tobacco. A bizarre ruling indeed, but it was the law of the land for almost another decade.
Today, the FDA clearly has the authority to regulate the manufacture and sale of drugs in this country. And on their face, many of the proposals for regulating e-cigarettes — which contain nicotine, but emit vapor rather than smoke — make a lot of sense. But there are some important differences between the products that makes it foolish to treat e-cigs exactly like traditional cigarettes.
As early as 1963, a patent was granted for a new kind of smokeless nicotine product. The device never made it to market, but the timing for this kind of thinking couldn't have been better. The U.S. Surgeon General would release the first definitive government report outlining the dangers of smoking the following year.
The 1990s saw the tobacco companies experimenting with new electronic versions of their products, though they rarely got past the prototype stage. But by the beginning of the 2010s, early adopters were flocking to e-cigs due to the appeal of a nicotine delivery device, without all that nasty cancer stuff. In just a few short years, e-cigs have become a huge industry and the major tobacco companies have been buying up companies. For instance, Lorillard now owns Blu, and Bloomberg Businessweek projects that e-cigarettes could become a $1.5 billion industry this year.
The vaping backlash began long before the FDA's proposals were made public. New York City recently banned vaping in public, even in outdoor parks. Just last week, Los Angeles implemented a vaping ban in restaurants. And private businesses are largely not too keen on letting people vape, even if it's outdoors.
I recently saw a guy vaping at the San Diego Zoo, only to have a security guard approach him and say that there was no smoking allowed in the park. The poor vaper futilely tried to explain that it wasn't a real cigarette, just an e-cig. But the security guard told him it didn't matter — it still wasn't allowed.
The mere perception that someone is smoking, even if their "secondhand vapor" isn't harming anyone else, is grounds for a ban in our post-smoke acceptance world — as evidenced by the L.A.-area mall sign above.
The modern mainstream anti-smoking movement has its roots in the early 1990s. By this time, the science on the health dangers of smoking was incredibly solid and grassroots anti-smoking efforts were getting much better organized. Tobacco companies were still insisting that their products were harmless, and tobacco executives even testified in front of high-profile congressional committees in 1994 claiming that they didn't believe smoking was addictive. But anti-smoking efforts were making a lot of headway. In 1995, California became the first state to ban smoking in all indoor workplaces and restaurants. By 1998, they had banned smoking in bars as well.
Public health advocates saw an opportunity in the 1990s to define indoor smoking as a workplace rights issue. Why should people working in restaurants have to be exposed to noxious poisons in the air? If that same smoke with the exact same carcinogens was coming from some machine in the corner of the bar, rather than from patrons' cigarettes, would the government allow it?
In 1994, the tobacco control community saw OSHA as their best shot at banning tobacco indoors across the country. If the FDA didn't have the authority to regulate tobacco use on the federal level, then maybe OSHA could as a workplace safety issue. But labor unions were quick to scuttle that idea. The old guard of chain-smoking union guys weren't about to be told that they had to put their cigarettes out. And the tobacco control community eventually realized that they had a better chance at fighting cigarettes on the local level.
Perhaps the most overlooked aspect of the rise of anti-smoking laws has a lot to do with California being the first to ban it. Countless people moved away from the populous state after 1995 only to be shocked that smoking was allowed in the bars and restaurants of their new home states. The societal norms were shifting, in no small part because mobile Californians had simply gotten used to not going home smelling like smoke after having a dinner out.
The FDA seems concerned that e-cigs will be (or are currently being) marketed to minors. This is a valid concern, if you look back at the history of tobacco marketing.
In the 1970s, the major tobacco companies and their advertising agencies explored all kinds of different ideas to attract youths to smoking. Like in the memo above, where Brown & Williamson's marketing firm wondered if honey cigarettes would be a good idea since, "It's a well known fact that teenagers like sweet products."
Today, e-cigs come in a variety of flavors, which adults certainly consume. But there's a reasonable case to be made that flavored vaping could contribute to the rise of use by children. This is one area where the FDA should certainly do more research.
Most tobacco companies resisted regulation by the FDA until the 2000s, largely because they were afraid that smoking would be outlawed. And this was a reasonable concern. How could a product that kills hundreds of thousands of people each year be left on the market? If one in three people who used a mop eventually died from mop-related illnesses, you could make a pretty compelling case to ban mops.
Interestingly, the largest tobacco company was just fine with regulation. By the late 1990s, Philip Morris was A-OK with the FDA regulating tobacco because it established some forms of legal protection for the product. Not coincidentally, the tobacco industry was in the middle of getting hammered by lawsuits from states who were upset that they were footing the bill for smoking related illnesses.
Not surprisingly, Lorillard (the owner of Blu e-cigs) released a statement today saying that they support the FDA's efforts to regulate the product in a reasonable manner. Lorillard seems confident that e-cigs will prove safe, and emphasize a "science-based approach" to the issue.
"It appears that the FDA is taking a science-based approach, and that the proposed rule itself defines a constructive process that recognizes that e-cigarettes are different than combustible cigarettes," the CEO of Lorillard said. "Despite what I am sure will be a robust give-and-take process over the comings months, we remain committed to our belief that electronic cigarettes represent a major opportunity to align the interests of business and public health."
Regulation means validation. And should e-cigs suddenly cause everybody to grow a second nose on their elbows or something, Lorillard welcomes the opportunity to point at government regulators having approved the product as safe for public consumption by adults.
The American public health community has always been uncomfortable with harm reduction. But harm reduction is an important consideration when you live in a dangerous world filled with all kinds of wonderfully harmful drugs. The idea is that if people are going to do damage to their bodies, why not set public health policies that allow for people to reduce the damage done?
It's the same concept that drives more progressive communities to embrace needle exchange programs or crack pipe vending machines, as they recently installed in Vancouver. Harm reduction products, like e-cigs, allow people who want to consume nicotine a more healthy alternative.
However, the FDA seems poised to revert to puritanical notions of all or nothing when it comes to nicotine use, when we read between the lines of their proposal. Everything about the proposals point toward treating them as cigarettes. Even though research already points to e-cigs being a useful alternative for smokers that could lead to fewer smoking deaths in the long term.
Nicotine is a drug. And as such, there's nothing wrong with the government making sure that this particular drug is safe for public consumption, and short of that, ensuring that people know what they're putting in their bodies.
For years, people switched to "light" cigarettes thinking that they were safer. But they weren't. The FDA banned the use of "light" as a designation for cigarettes, and now, if you want a pack of Camel Lights, you need to get Camel Blue. This seems reasonable, if a bit confusing.
The tricky thing with e-cigs is that they've been on the market for a relatively short period of time. While there's virtually no question that vaping is safer than smoking cigarettes, there's still the "what if" crowd to contend with.
Vape 'em if you got 'em, because e-cigarettes aren't going away any time soon. But they're almost certainly about to become much more expensive, and much more difficult to find — if only because they're merely associated with smoking. Which is a shame. Because ironically, treating e-cigs like traditional smokes could wind up needlessly contributing to smoking-related deaths.
Full disclosure: As a teenager I was employed as an intern by the Minnesota Department of Health and worked on youth smoking prevention issues. I also participated in protests against Philip Morris in New York and Brown & Williamson in Louisville in 2000 and 2001 respectively.
Images: Unidentified man lighting a cigarette in 1935 via Getty Images; 1963 patent for smokeless tobacco device via Google Patents; Westfield mall sign photographed by your humble bloggist; 1994 testimony by the seven CEOs of major tobacco companies via Associated Press; smoking hand in 2005 via Associated Press