Are e-cigarettes a tobacco product?
The Food and Drug Administration (FDA) seems to think so. In a rule proposed in April, the agency would define e-cigarette cartridges as a tobacco product under the Federal Food, Drug, and Cosmetic (FD&C) Act.
That, even though e-cigarettes do not even contain any tobacco. They release vapor. They contain nicotine. But there is no tobacco inside.
So how can they be a tobacco product?
They probably shouldn’t be regulated at all. But to the extent that they are, if anything, they are a smoking cessation product, not unlike nicotine patches or nicotine gum, that enable smokers to quit the habit in a safe way and improve their health.
So why treat them like tobacco if they share none of its characteristics?
Under the FD&C Act, the rule would allow the agency to go after e-cigarette producers with: “(1) Enforcement action against products determined to be adulterated and misbranded; (2) required submission of ingredient listing and reporting of harmful and potentially harmful constituents (HPHCs) for all tobacco products; (3) required registration and product listing for all tobacco products; (4) prohibition against use of modified risk descriptors (e.g., ‘light,’ ‘low,’ and ‘mild’ descriptors) and claims unless FDA issues an order permitting their use; (5) prohibition on the distribution of free samples (same as for cigarettes); and (6) premarket review requirements.”
Several state attorneys general, including New York Attorney General Eric Schneiderman, would go even further, telling the agency that it ought to “prohibit characterizing flavors other than tobacco and menthol in e-cigarettes and other tobacco products; restrict the advertising, marketing, and promotion of e-cigarettes in the same respects it has restricted the advertising, marketing and promotion of cigarettes and smokeless tobacco, as well as strengthening and updating those restrictions; strengthen the health warnings for the deemed tobacco products;” along with other add-on rules.
This is ridiculous. There are no such flavor restrictions on nicotine gum. Who cares if somebody prefers the taste of cherry, fruit, or mint in their smoking cessation product when they’re quitting smoking?
And why would the government want to bar the advertising of a smoking cessation products like e-cigarettes to those who are likely to be smoking? Treating e-cigarettes like tobacco will impose the same advertising restrictions on them as regular cigarettes.
Not only does that violate the First Amendment rights of e-cigarette producers, it’s just plain dumb. The point of smoking cessation is to save lives.
Why would the government want to stand in the way of saving lives? We thought they wanted everyone to quit smoking. Maybe not. Perhaps they’re hooked on tobacco sales taxes. Time to kick the habit.
Robert Romano is the senior editor of Americans for Limited Government.
