States taking action to regulate e-cigarettes: FDA working to gain authority as science on products grows
=========================================================================================================

* Natalie McGill

It was a 2009 complaint to a New Jersey local health official from a resident about seeing smoking inside of a mall that set the state Legislature on a path to electronic cigarette regulations.

While the complaint turned out to involve e-cigarettes, not tobacco, it raised awareness of the state’s existing Smoke Free Air Act, which banned cigarette use indoors. In 2010, state lawmakers were prompted to ban people from using e-cigarettes inside public places.

“It raised awareness that this was a new technology of an old problem,” said Mary O’Dowd, MPH, New Jersey’s state health commissioner. “To the credit of those (legislators) at the time, they quickly incorporated it into our existing law so that this was not a way to get around the law.”

Dozens of states are passing legislation to regulate e-cigarettes as the Food and Drug Administration continues its quest to gain authority over the products.

In April 2014, FDA proposed a rule that would extend its regulatory authority over unregulated tobacco products, such as e-cigarettes and water pipe tobacco — also known as hookah. The rule, still yet to be finalized, would allow FDA to create and enforce regulations, such as age restrictions on use of newly deemed or regulated products.

In the meantime, states have taken up the charge, with New Jersey being one of 40 states that prohibit e-cigarette sales to minors, according to a November *Morbidity and Mortality Weekly Report* study of state laws from the Centers for Disease Control and Prevention. Thirty-six states will not sell to anyone younger than 18 and four states will not sell to anyone younger than 19.

![Figure1](http://www.thenationshealth.org/http://www.thenationshealth.org/content/nathealth/45/4/1.1/F1.medium.gif)

[Figure1](http://www.thenationshealth.org/content/45/4/1.1/F1)

A customer fills an e-cigarette vaporizer with oil on Jan. 28 at a store in San Rafael, California. California is one of a growing number of states with regulations in place regarding e-cigarettes.

Photo by Justin Sullivan, courtesy Getty Images

That leaves approximately 16 million children under 18 who can legally purchase e-cigarettes, the study said. That statistic is troubling to some public health officials, considering the increasing number of young adults using the products. According to a February *Nicotine and Tobacco Research* study, the number of U.S. youth in grades six through 12 who used e-cigarettes between 2011 and 2013 more than tripled, from 79,000 to 263,000 people.

“We still have 10 states (and the District of Columbia) where it’s not even prohibited,” said Tim McAfee, MD, MPH, senior medical officer for CDC’s Office on Smoking and Health. “It’s perfectly legal for a 13-year-old to be sold an e-cigarette. And in most states that have passed laws making it illegal to sell to minors, the enforcement provisions are far weaker than those for cigarettes.”

Even in states where sales of e-cigarettes are prohibited to minors, youths may still be able to buy them online. A March study in *JAMA Pediatrics* found youth in North Carolina — a state that prohibits sales to minors —could easily purchase e-cigarettes on the Internet.

As of March, only Minnesota and North Carolina had some form of tax on e-cigarettes. North Carolina’s law imposes a 5 cent tax for every milliliter of liquid containing nicotine in an e-cigarette, while Minnesota’s law taxes e-cigarettes and liquid containing nicotine.

Indoor smoking laws exist in 27 states and the District of Columbia but only three of those states — New Jersey, North Dakota and Utah — prohibit e-cigarette use in places such as bars, restaurants and private workplaces as they would with cigarettes, the *MMWR* study said.

Utah legislators have gone one step further: In March, the state Legislature passed a bill to go into effect July 2016 that will require e-cigarette retailers to be licensed to sell their products and will punish anyone caught selling e-cigarettes to minors, said Adam Bramwell, the marketing manager and media liaison for the Utah Department of Health’s Tobacco Prevention and Control Program.

![Figure2](http://www.thenationshealth.org/http://www.thenationshealth.org/content/nathealth/45/4/1.1/F2.medium.gif)

[Figure2](http://www.thenationshealth.org/content/45/4/1.1/F2)

Liquid that is used in e-cigarette vaporizers is on display Jan. 28 at a store in San Rafael, California. U.S. poison call centers have seen a spike in calls in recent years due to exposure to the liquids inside e-cigarettes, particularly among children.

Photo by Justin Sullivan, courtesy Getty Images

“Between 2011 and 2013, we saw more than a threefold increase in the percentage of underage Utah teens using e-cigarettes,” Bramwell told *The Nation’s Health.* “While we wait for the science on the long-term effects of these things and for the FDA to weigh in, thousands of teens in Utah are starting a nicotine addiction via e-cigarettes. We’re seeing ads that make these flimsy claims about e-cigarettes being fun and safe; meanwhile it’s imperative we get something into place to put our finger in the dam until we know more.”

But state health officials acknowledge there are challenges legislators face in moving laws that regulate e-cigarettes through a legislature.

One challenge is the policy debate over what the role of the federal government and the state government should be, while another is dealing with a strong e-cigarette lobby that markets products as safe alternatives to traditional smoking despite a lack of scientific evidence, O’Dowd said. Also clouding the debate is that manufacturers often market e-cigarettes as smoking cessation devices, she said.

“We’re seeing the evidence that these products are being marketed to children and the number of children using them is increasing dramatically over time,” O’Dowd told *The Nation’s Health.* “It’s not consistent with the marketing that it’s for adults to quit smoking.”

## E-cigarette research continues to grow

As states continue to pass laws regulating e-cigarettes, health officials have been able to draw from an increasing body of scientific evidence about the health effects of their use.

U.S. poison call centers saw a spike in calls in recent years due to exposure to the liquids inside e-cigarettes, according to an April 2014 *MMWR* study. The number of exposure calls jumped from one per month in September 2010 to more than 200 a month by February 2014, the study said. Just over half of those calls involved kids younger than age 5 who either inhaled the liquid, consumed it or absorbed it through their skin or eyes.

In California, for example, the number of poison control center calls involving e-cigarette exposure to children ages 5 and younger increased from seven in 2012 to 154 by 2013, according to “State Health Officer’s Report on E-Cigarettes: A Community Health Threat,” a report released in January by the California Department of Public Health.

Additionally, the aerosol released from e-cigarettes has been found to have at least 10 chemicals, such as benzene and cadmium, that are on a state list of chemicals known to cause birth defects and cancer, the report said.

“Overall, research confirms that e-cigarettes are not emission-free and their pollutants could be of health concern for both users and those exposed to the secondhand aerosol,” the report said. “Although it may not be as dangerous as secondhand smoke from cigarettes, people passively exposed to e-cigarette aerosol absorb nicotine at levels comparable to passive smokers.”

The California Department of Public Health also issued an e-cigarette health advisory for health care professionals in January. The advisory covered topics such as nicotine poisonings and youth use and issued recommendations to health care professionals, calling for them to educate parents and youth about the products. California state law bans the sale of e-cigarettes to anyone younger than age 18.

In a review of 82 studies on e-cigarettes, researchers concluded that because of ultrafine particles, e-cigarette vapor is not “harmless water vapor” and can be a source of indoor air pollution, despite limited research data, according to a May 2014 scientific review in *Circulation*.

And a March study in the *American Journal of Preventive Medicine* addressed e-cigarette claims that dismiss their effects, by highlighting how highly addictive nicotine is, especially to teens’ developing brains. The study also pointed out how harmful nicotine can be to a developing fetus, regardless of whether it is taken in via a cigarette or an e-cigarette, yet there are still millions of youth entering their peak reproductive age using e-cigarettes and increasing their chances of being addicted, said McAfee, a study author.

“Anything that involves millions of young women picking up any nicotine product has grave concerns for reproductive health,” McAfee said.

FDA is holding a public workshop June 1-2 in Hyattsville, Maryland, on the public health impacts of e-cigarettes. The agency is accepting comments on e-cigarettes through July 2 at [www.regulations.gov](http://www.regulations.gov).

For more information, visit [www.cdc.gov/tobacco/about](http://www.cdc.gov/tobacco/about).

*   Copyright The Nation’s Health, American Public Health Association