Now that the U.S. Food and Drug Administration has proposed a new rule that would extend the agency’s tobacco authority to regulate such products as electronic cigarettes, 29 attorneys general, including from New York and New England, are calling for more stringent regulations.
New York State Attorney General Eric Schneiderman, together with his counterparts in Connecticut, Massachusetts, New Hampshire, Vermont, and 24 others, co-sponsored a letter submitted to the Food and Drug Administration August 8, the day the comment period closed. The letter urges the FDA to strengthen its proposed regulation of electronic cigarettes – or e-cigarettes . Dana Biberman is bureau chief of the New York Attorney General’s Tobacco Compliance Bureau.
“In the view of Attorney General Schneiderman and a number of other state attorneys general, it doesn’t go far enough in the area of particularly public health and protecting young people from the harms of cigarette smoking,”
Electronic cigarettes produce vapor. They do not burn tobacco. Instead, they heat liquid containing nicotine derived from tobacco. Again, Biberman.
“E-cigarettes, in the view of Attorney General Schneiderman, do contain and are based on highly addictive nicotine, and that can be sort of an opening towards taking, starting to use combustible cigarettes which are proven to be harmful to everyone’s health,” Biberman says.
Phil Daman is president and chairman of the board of Washington, D.C.-based Smoke-Free Alternatives Trade Association, or SFATA, representing businesses in the vapor industry, mainly e-cigarettes. He says the FDA’s proposed regulation is inappropriate.
“So as a threshold matter, we don’t think that the FDA actually has the jurisdiction pursuant to the powers which Congress gave them under the Tobacco Control Act to regulate this particular technology product,” says Daman.
Among other recommendations, the attorneys general pressed the FDA to prohibit flavors in e-cigarettes and to restrict advertising and marketing for e-cigarettes in the same manner as for tobacco cigarettes. Here’s Biberman.
“So you now have advertisements on commercial television in prime time that millions of young people can see,” says Biberman. “And, e-cigarette smoking and smoking in general in this case is sort of glamorized once again the way it was more than 30 or 40 years ago when you saw cigarette advertising on television all the time. And so once again they’re using famous actors or musicians or sports people to advertise, I guess, the value or the benefits of e-cigarette smoking when in fact the benefits have not been proven and there’s still a tremendous amount of research to be done as to what the either harms or benefits might be.”
Daman agrees that e-cigarettes should not be marketed to children.
“The only ads that we’ve seen have been with Jenny McCarthy and I think Stephen Dorff have been on TV, and very rarely, usually late at night,” says Daman. “But if they were on prime time, I don’t know that many children would look at Jenny McCarthy or Stephen Dorff as sex symbols or individuals that appeal to children. They really appeal to adults.”
He also says SFATA’s member businesses do not make cessation claims.
“We would never make any cessation claims, but to ignore the potential benefit that we may realize as a society from using this as a cessation product in the future is one that can’t be ignored,” Daman says. “The benefits are just too great.”
According to the FDA, products that would be “deemed” to be subject to FDA regulation are those that meet the statutory definition of a tobacco product, including currently unregulated marketed products, such as e-cigarettes, cigars, pipe tobacco, nicotine gels, and others not already under the FDA’s authority.
Dr. Carl Phillips is scientific director of the Consumer Advocates for Smoke-free Alternatives Association.
“The claims in this press release are just absurd and are frankly embarrassing to be coming from attorneys general,” Phillips says. “For example, their thesis statement is that the FDA regulation should be stronger for e-cigarettes. The fact of the matter is that the FDA regulations as proposed would come close to banning e-cigarettes. It’s hard to get much stronger than that.”
In New York, there is an effort afoot to add "electronic cigarette" to the definition of "smoking,” thus banning the smoking of e-cigarettes in public areas where cigarette and other tobacco smoking is already prohibited. Republican State Senator Kemp Hannon and Democratic Assemblywoman Linda Rosenthal have sponsored such a bill, though it was not voted upon in the recently-ended legislative session. It’s a bill Hudson Valley State Senator David Carlucci, an Independent Democrat, supports. Carlucci has said e-cigarettes should be held to the same standards as tobacco cigarettes. A Carlucci spokesman says state regulation is still needed because federal regulation could take years. An FDA spokeswoman says there is no definitive timetable to release finalized regulations on e-cigarettes.