Since their introduction to the United States market in 2006, electronic cigarettes (e-cigarettes) have quickly transformed from a novelty product into a widely used device for the delivery of nicotine and flavored vapors. In 2017, a nationally representative study found that 35.8% of high school seniors reported trying “vaping,” or using e-cigarettes, in comparison to the 26.6% who reported their use of traditional, combustible cigarettes. The study also found that 18.5% of eighth graders reported trying vaping. Youth acceptance of vaping has concerned public health advocates, who worry that the impacts of the successful campaign against tobacco could be reversed if vaping makes young people more likely to initiate smoking.
As of August 1, 2017, 49 states, the District of Columbia, and U.S. federal law regulate e-cigarettes. The Center for Public Health Law Research has released a new dataset analyzing laws controlling electronic cigarettes now available on LawAtlas.org, the Policy Surveillance Program’s website dedicated to empirical legal datasets. This research reveals several important decisions that states make when regulating e-cigarettes.
First is whether e-cigarettes are regulated in the same way as traditional tobacco products. Incorporating e-cigarettes into the existing definition of “tobacco products,” is a common practice. As of August 1, 2017, 11 states and the District of Columbia consider e-cigarettes to be a tobacco product. Additionally, 12 states, the District of Columbia, and U.S. federal law also regulate e-cigarettes similarly to traditional cigarettes by including the use of e-cigarettes in their definition of smoking. This often places e-cigarettes under the control of state clean indoor air acts, which restrict the use of e-cigarettes in the same areas where smoking traditional cigarettes is prohibited.
Another important legal distinction is whether e-cigarettes must contain nicotine. Eleven states and U.S. federal law require an e-cigarette to contain nicotine in order to be legally defined as an e-cigarette. Some e-cigarettes only deliver flavored vapor and do not deliver nicotine. Therefore, definitions of e-cigarettes that require nicotine content do not regulate e-cigarettes that only deliver flavoring. While flavorings may not contain addictive chemicals like nicotine, studies have shown that certain flavoring chemicals can produce harmful reactions in users’ lungs.
The dataset also captures requirements related to online purchasing and product packaging, including child-resistant packaging and nicotine concentration labeling requirements. Child-resistant packaging is important because the nicotine concentrations in the “e-liquids” vaporized by e-cigarettes are high enough to cause nicotine poisoning if ingested or even if touched. Further, online purchasing requirements are important because many e-cigarettes are purchased online and can be shipped to underage users illegally if website vendors are not scrupulous in their screening practices. As of August 1, 2017, 12 states require age verification by a third-party service for online purchases of e-cigarettes.
As medical and scientific researchers continue to publish studies on the potential public health impacts of e-cigarettes, the state regulatory landscape may evolve further. Although many studies conclude that e-cigarettes are less harmful than traditional cigarettes, their long-term effects are still unknown. To aid this research, the new policy surveillance Electronic Cigarette Laws data set serves as a resource for tracking the regulatory response of states as the consumption of e-cigarettes continues to expand.