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Local and Nationwide Regulation of E-Cigarettes

E-cig retailer Eversmoke explains the types of regulations e-cigarettes are subject to, and could be subject to, on both the local and federal level

Vapor smoking is considered by many to be a safer alternative to traditional cigarettes. Not only do e-cigarettes not contain many of the harmful chemicals found in a Marlboro or Winston, they don't carry the infamous smell so many of us are familiar with – you can puff on your e-cig and not bother people around you.

This however doesn't stop federal, state, and local governments from trying to regulate the devices.

Traditional cigarettes are pretty heavily regulated as you know. Federal regulations require warnings on each pack, while local regulations limit where people can light up. Some states even ban smoking indoors altogether, and all levels of government impose some sort of tax on them.

Although e-cigarettes aren't regulated as heavily as traditional cigarettes, the debate about their future is quite intense

Many regulations like not selling e-cigs to minors are not that controversial. Most reasonable people would agree that teen smoking –whether it's a regular cigarette or an electronic one– isn't desirable.

(More on state and local e-cig regulations below)

However, some proposed regulations of e-cigarettes are very controversial. One such controversy involves the U.S. Food and Drug Administration, or FDA.

For several years now, the FDA has tried to impose tighter controls on e-cigarettes. The central question has been –should e-cigs be regulated like traditional cigarettes?

In 2009, the Family Smoking Prevention and Tobacco Control Act was signed into law. The cornerstone of this legislation involved granting the FDA authority to regulate the manufacture, distribution and marketing of "tobacco products". Between 2008 and 2010, the FDA attempted to regulate e-cigarettes as an unapproved drug/device and as a result, prevented the import of certain e-cig brands.

The companies affected by this sued the FDA, and won on the grounds that e-cigarettes are not drugs/devices unless they're marketed for "therapeutic purposes". This is why e-cig companies do not, and cannot market their products as a quit smoking aid.

Fast forward to early 2013 where the FDA cites authority in Chapter IX of the Federal Food, Drug and Cosmetic Act (FDCA) allowing for general regulation of "tobacco products", namely registration, product/ingredient listing, good manufacturing practice requirements and user fees among other things. The FDA also claims that Chapter IX subjects "new tobacco products" and "modified risk tobacco products" to a pre-market review.

As of this writing, it's unclear how FDA regulations will affect vapers and the e-cigarette industry (check our e-cigarette blog for updates). However, many worry that stringent requirements will shut out smaller firms since documentation would be too expensive and cumbersome. Manufacturing and "adulteration" provisions could prohibit different flavors for example, or limit nicotine to extremely low levels.

Similar measures are being considered in the European Union as well.

Groups like the Consumer Advocates for Smoke-Free Alternatives Association, or CASAA, are very concerned about regulations like these since they could strike a fatal blow to this growing industry. Supporters of these measures counter that not enough is known about e-cigs, and that tighter controls and classifications will open the door to more research.

State & local e-cigarette regulations

While the FDA consumes the bulk of attention when it comes to the regulation of e-cigs, state and local ordinances are just as important. Some locales have sought to prevent the sale of e-cigarettes to minors, while others have taken drastic steps to either tax or limit where vapers can use their devices. Actions like these in effect lump e-cigarettes in with traditional ones.

Below are a few examples of common regulations at the state and local level:

•  Indoor use bans – Smoking indoors has been illegal in many states and locales for several years now. However, many are either proposing or have enacted the same restrictions on e-cigarettes. But since e-cigs emit vapor rather than smoke, no evidence exists to lump e-cigarettes in with traditional ones.

•  Tobacco taxes – With the decline in revenue from traditional cigarettes, some states and locales are considering taxes on smoke-free alternatives like the e-cig. Many are concerned though that any new taxes on e-cigs will be cumbersome to collect, and many current smokers will not seek alternatives. As of this writing, Delaware is proposing a 30% tax on e-cigarettes and other smokeless products.

•  Sales bans – Some claim that since e-cigarettes come in a variety of flavors, young people are attracted to them. Some states have proposed bans on e-cigarettes in pharmacies, while the city of New York has considered a ban on e-liquid flavors. Industry groups like CASAA maintain there is little evidence to support the theory that flavored e-liquid attracts young people, gets them addicted to nicotine, and eventually to regular cigarettes.

•  Sale to minor bans – One regulation the industry supports is a ban on sale to minors. E-cigarettes are for adults only, and should not be marketed at all to kids and teens. Organizations like CASAA and Eversmoke are pretty serious about ensuring only adults order and use e-cigarettes. Arizona is one state currently seeking to ban e-cig sales to minors.

•  Licensing requirements – Imposing burdensome licensing requirements is another common way states and locales try and regulate e-cigarettes. Much of this stems from whether the FDA ends up classifying e-cigarettes as tobacco products or not.

While some regulations make sense, others like lumping e-cigarettes in with regular smoking bans is short-sighted at best. We obviously do not want minors taking up the habit, but it's unfair to subject vapers to unreasonable taxes, or subject manufacturers to burdensome reporting requirements.

The landscape on e-cig regulation is always changing, but this provides a brief overview of some of the issues vapers and the industry are facing right now.

For updates on specific proposals, please visit our e-cigarette blog or our knowledge center piece– Common Local Regulations Affecting E-Cigarettes Users– for more.

And if you're ready to begin exploring e-cigarettes and alternative smoking, we invite you to consider Eversmoke for all of your vaping needs.

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