Proposed Legislation for Youth-Targeted E-Cigarette Advertising Emerges, FDA Regulation Looms

The announcement of the FDA’s intention to issue a proposed rule for the regulation of new tobacco products such as e-cigarettes as well as recently introduced federal legislation that would prohibit the marketing of e-cigarettes to children and teens has spawned a new debate about the product and its role in the ongoing saga of tobacco addiction and prevention in the country. E-cigarettes, or electronic cigarettes, are battery-operated products, which contain nicotine and other flavored additives and which are inhaled by the user. While some argue that this technology is a step in the right direction and a means of breaking cycles of tobacco addiction for many, others assert it is simply a gateway product to traditional tobacco use, especially for the susceptible youth of the country.

Proposed Legislation

On February 26, 2014, five U.S. Senators—Barbara Boxer (D-Cal.), Dick Durbin (D-Ill.), Richard Blumenthal (D-Conn.), Tom Harkin (D.-Iowa), and Edward J. Markey (D-Mass.)—proposed legislation entitled “Protecting Children from Electronic Cigarette Advertising Act,” which would prohibit e-cigarette marketing to children and adolescents. According to the sponsors, the legislation was created because e-cigarette manufacturers are employing techniques to market to children including flavoring products using candy and fruit flavors and promoting the products using cartoon characters. The legislation’s announcement refuted the e-cigarette producers’ claims that the industry was not targeting youth in marketing techniques: “Despite claims from some e-cigarette makers that they do not market their products to children, e-cigarette manufacturers have adopted marketing practices similar to those long used by the tobacco industry to market cigarettes to youth…” Additionally, Senator Harkin argued, “when it comes to the marketing of e-cigarettes to children and teens, it’s ‘Joe Camel’ all over again.” Last year, it was reported that e-cigarette use among middle school and high school students in the U.S. doubled between 2011 and 2012.

FDA Action

In January of 2014, before the introduction of the proposed federal legislation, the FDA announced its intention to issue a proposed rule to extend the FDA’s authority to regulate tobacco products to cover such items as e-cigarettes. According to the FDA, because e-cigarettes have not fully been studied, the potential risks, the levels of nicotine and other chemicals contained in the products, and the purported benefits of the use of the products are unknown. In addition, the FDA argued that e-cigarettes could act as a gateway to traditional smoking among the younger generations. As such, the FDA in a unified agenda, described a two-part rule expected to be authorized the Food, Drugs and Cosmetics Act, as amended by the Tobacco Control Act (P.L. 111-31). The first aspect of the rule would declare that the FDA is authorized to regulate all tobacco products, while the second part would apply regulation to “newly-deemed” tobacco products, including e-cigarettes. Although the specifics have not been released the FDA claims that this rule-making would provide benefits in the form of dissuading smokers from all forms of tobacco use through mandating registration, labeling, and submission requirements.

State Action

The attention being paid to the regulation of e-cigarettes has not been contained at the federal level. As of January 2014, it was reported that nine states have adopted laws that prohibit e-cigarette use in 100 percent smoke-free zones. Additionally, some reports show that proposed legislation of e-cigarettes at the state-level is increasingly on the dockets for 2014 state legislation sessions. One of several proposed bills in Minnesota was recently debated in Minnesota’s House Health and Human Services Committee. This bill would prohibit e-cigarettes in schools and give municipalities the authority to set guidelines for use in different locations. According to local reports, sponsors of the Minnesota bills point to the lack of knowledge of the ingredients and effects of e-cigarettes. Yet, opponents use the same evidence to support arguments against regulation.

Debate

A recent piece in the New York Times captured this controversy which has enveloped politicians, lobbyists, activists, and tobacco users at both the state and federal levels. The article reports that while some experts argue that the devices could make traditional cigarettes obsolete and, therefore, aid in the fight against smoking, others claim electronic cigarettes are simply a stepping stone on the way to traditional smoking and will increase addiction rather than quash it. In the end, the article summarizes the debate as follows: “Will e-cigarettes cause more or fewer to smoke?” Yet, taking into consideration the FDA statements regarding the uncertainty of the true effects of these products and such arguments as those made in Minnesota over the lack of evidence, perhaps the appropriate question is not what behavior it will lead to but simply: What are the effects of smoking e-cigarettes?