Electronic Cigarettes: Local Limits

How towns and states are slowing the growth of e-cigarette sales

By  Erik J. Martin, CSP Correspondent

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Adam and Eve were banned from the Garden of Eden for biting into an apple.

Now, The Big Apple is banning their descendants from using e-cigarettes at Madison Square Garden—or any site in New York City where traditional cigarette use is disallowed, for that matter. The Windy City has followed suit, and the City of Angels may not be far behind.

New York Mayor Michael Bloomberg’s signing of his city’s controversial e-cigarette ban into law in late December (one of his final acts before his term ended) and the Chicago City Council’s vote to approve a similar measure in mid-January is major news. But it’s merely the latest in a series of related moves being made or considered by municipalities across the country. Indeed, restrictive vaping laws appear to be picking up momentum in several markets throughout the United States, as anti-e-cig sentiment continues to ride high among various city councils, legislative bodies and offices of elected officials, despite efforts from advocates seeking to distinguish electronic cigarettes from its combustible cousin.

Consider that more than 100 cities—including Seattle; Boston; Indianapolis; Gainesville, Fla.; Mountain View, Calif.; and Duluth, Minn.—have enacted laws comparable to New York’s, effectively outlawing e-cig use in places where smoking is prohibited, such as parks, restaurants, bars, outdoor dining spaces, beaches and office buildings. Meanwhile, a bill similar to New York’s is on the table in Los Angeles for consideration in early 2014.

While many localities are taking preemptive measures against e-cigarettes, others await guidance from the U.S. Food and Drug Administration (FDA). In the coming weeks, the FDA is expected to finalize and publish its long-awaited federal rules that could ban sales of e-cigarettes to minors, prohibit flavors, cap nicotine levels and curb advertising and online sales.

Big Apple’s Big Precedent

Shortly after holding a public hearing in December, the New York City Council voted 43-8 to add e-cigs to the city’s Smoke-Free Air Act. At that public hearing, Thomas A. Farley, Commissioner of the New York City Department of Health and Mental Hygiene, said that allowing the use of e-cigarettes indoors may make it difficult to enforce the city’s Smoke-Free Air Act against conventional cigarettes, because e-cigarettes and conventional cigarettes look so much alike.

“New Yorkers have come to enjoy and greatly benefit from smoke-free restaurants and bars. We do not want to return to a day in which smoking conventional cigarettes in these places is allowed, simply because restaurant and bar staff can’t easily distinguish them from e-cigarettes,” Farley testified at the hearing. “Because of these concerns, prohibiting the use of electronic cigarettes in areas where smoking is restricted is a prudent step. While more research is needed on the health effects of electronic cigarettes, waiting to act could jeopardize the progress [New York City has] made over the last 12 years.”

While he sees New York’s move as an interesting development that other cities may follow, Nik Modi, managing director/ research analyst for RBC Capital Markets, New York, says he believes broader regulatory measures will be taken once the FDA provides initial guidance.

Thomas Briant, executive director and legal counsel for the National Association of Tobacco Outlets (NATO), Minneapolis, says the New York ban has significant repercussions.

“While some cities have begun to consider and adopt restrictions on the use of e-cigarettes in public places,” says Briant, “New York City is the largest city with a ban on the use of e-cigarettes in public places and workplaces that also prohibits the sale of e-cigarettes to anyone under the age of 21.”

Briant says the cities with the strictest e-cigarette laws are those that have applied regulations that are similar to current regulations on cigarettes and other tobacco products.

“These regulations include prohibiting the sale of e-cigarettes to underage youth, outlawing self-service displays of e-cigarettes except in adult-only tobacco stores, and requiring a license or permit to sell e-cigarettes,” he says.

Prudent or Premature?

With the flurry of legislative activity that occurred in 2013 seeking to restrict the use of e-cigarettes, an overriding question emerges: Are these territories giving due process to vaping and hearing both sides of the argument, or are many elected officials simply jumping on the “ban” wagon and rushing to judgment unfairly?

“The actions taken at local levels largely have to do with the inaction by the FDA,” says Modi. “We feel most officials are taking action to prevent any perceived downside risk. But without sound science and research, it would be unfair of us to say these officials taking action are acting prematurely or unfairly.”

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