Regulating Vaping — Policies, Possibilities, and Perils

Smoking rates soared high in the United States in the mid-1960s but have since fallen to historically low levels. The smoking of e-cigarettes has lately increased, especially among younger people. In 2019, over 27 percent of teens said they used vaping devices in the past month, in contrast to around 6% that reported smoking smokeless cigarettes. 1 The use of Juul products is responsible for a large portion of the increase in smoking vapes between the years 2017 to the year 2019. These products account for 70% of the multibillion-dollar market for e-cigarettes. The rise of vaping among youth has frightened policymakers and other people.

State and federal governments have enacted numerous policies to stop the spread of vaping. To improve people’s health, they must be geared towards protecting young people while not reducing the capacity of electronic cigarettes to aid adult smokers in transitioning away from dangerous combustible cigarettes or to provide aid to those trying to stop smoking. This is a dilemma for policymakers as smoking vaping policies typically encourage one thing while ignoring the other. Additionally, the fact that some state and federal policies can complement, substitute for, or conflict with each other and that specific national policies override state laws make for further confusion in the decision-making process in this field.

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Since e-cigarettes use liquid to replace the smell, smoking tobacco is considered safer than cigarettes that burn. 2 However, the long-term health consequences of inhaling the chemical compounds that flavor liquids and nicotine are unknown.

Juul is the cartridge (“pod”) kind of e-cigarette. It is a rechargeable, reusable device that houses a liquid-filled pod, not a re-fillable open tank system or disposable device. Juul pods have higher levels of nicotine than other brands of e-cigarettes, which makes them an ideal alternative to smoking combustible cigarettes for those who smoke. However, high nicotine levels increase the chance of becoming addicted in young people and may cause cognitive impairment. Vaping electronic cigarettes adulterated with tetrahydrocannabinol (THC) and vitamin E acetate has recently led to increased acute lung disease and death. 3 While these risks seem to be related to the use of THC and the use of e-cigarettes from sources other than e-cigarettes as a whole, These issues raise concerns about electronic cigarettes.

State e-Cigarette Regulations by Type. Federal and state policymakers are focusing on two significant policies that will stop vaping among teens. Law enforcement officials are focusing on minimum sales age laws that limit the sales of e-cigarettes for adolescents and ban the sale of flavored e-cigarettes. A few states have also introduced taxation on e-cigarettes (see table).

In December 2019, Congress passed the so-called Tobacco 21 legislation, which instantly established a minimum age in the federal government 21 for buying electronic cigarettes and tobacco products. Twenty-four states and the District of Columbia had enacted guidelines that set the age to purchase e-cigarettes as 19 or 21, depending on the state. In other states, there was a minimum of 18.

Since most tobacco use starts before the age of 19, The new law is likely to significantly reduce tobacco use among children and stop individuals from ever using tobacco. However, enforcing restrictions on the sale of tobacco to minors can be difficult in retail stores and more complex online, and youngsters often buy E-cigarettes through family members or friends. To curb the availability of electronic cigarettes among youth, states, and federal governments should increase their funding to enforce laws and cooperate to develop more effective ways to stop sales to children in retail stores and online stores.

Another crucial policy is to ban flavor-based E-cigarettes that are flavored. Because flavor is more appealing for young people than adults, a ban on flavors might decrease the appeal of e-cigarettes for younger people but not diminish their impact on harm reduction for adults who smoke. Nine states have enacted flavor bans, but most have been temporary emergency bans or delayed by legal issues.

In December 2019, The Food and Drug Administration (FDA) announced it would utilize its authority for market review to stop all flavors other than tobacco and menthol from the cartridge (pod-based) electronic cigarettes. The change became effective in February 2020. The new policy doesn’t cover e-liquids that are disposable and open-tank e-cigarettes typically available in vape shops. These crucial exceptions restrict the impact of the ban.

Due to various motives, all flavors of tobacco products without exemptions would make more sense than the present restrictive ban. 4,5 First Menthol cigarettes are still circulating and popular with younger people. Furthermore, even though younger people are more likely to prefer fruit and candy-flavored pods, menthol-flavored ones could look more appealing when they are the only flavors available in the pods. Thirdly, with the current law, youngsters can use e-cigarettes that still contain flavors. Teens have recently been embracing new flavors of disposable e-cigarettes that look like Juul devices but with greater nicotine levels and are priced less.

Another reason to be concerned is the need for more clarity on what commitment the FDA is to enforcing its flavor ban on cartridges for electronic cigarettes. The FDA has generally refused to exercise its authority to regulate e-cigarettes and has failed to fulfill the obligation imposed by Congress to take products that don’t protect the public’s health, like Juul devices, out of the market. States’ bans on flavored cigarettes are likely to remain significant.

Another policy is the taxation of electronic cigarettes. Twenty-one states, as well as those in the District of Columbia, tax both electronic cigarettes and combustible cigarettes. The federal government only taxes combustible cigarettes.

The consequences of these taxes on health and well-being are complex for several reasons. Taxes on e-cigarettes increase the cost, discouraging those interested in smoking. However, taxes on e-cigarettes can cause some vapers to turn to smoking cigarettes, as taxes are a significant factor in increasing the cost of vaping e-cigarettes compared to the cost of smoking combustibles. 4,5 Thus, taxes on vapes should be set such that it’s less expensive to smoke a cigarette than vaping. The process of determining the best tax rates is challenging due to the many types of e-cigarettes on the market, the fact that pods and devices are typically purchased separately, and the capacity of companies rather than the government to set rates. Additionally, a too-high tax on e-cigarettes could promote the use of lower-cost or black-market e-cigarettes. This is diminishing the value of taxation.

In light of these concerns and the insufficient evidence on how people react to taxes on electronic cigarettes, it is better to put more emphasis on implementing Tobacco 21 policies and flavor bans to discourage smoking cigarettes among teens. The lure of tax revenue could be too compelling for governments to fight.

At what level of the government — state or federal, should policies regarding e-cigarettes be implemented? There are many advantages for states to take the initiative. States can be more agile regulators than federal authorities. Each state can regulate according to its requirements, and policies of the state could be used to test new ideas and provide valuable data. State laws may fill in gaps when federal regulations are ineffective or not in place. States can also provide incentives for national action by showing the nation’s political will, such as when they did with the passage of the Tobacco 21 laws. But, different state-specific policies could leave young people in a few states vulnerable and facilitate the flow of electronic cigarettes across states.

However, having regulations implemented at the federal level could have potential advantages over state-based regulations for e-cigarettes because of the wide-ranging nature of national policies and their ability to limit the spread of e-cigarettes across state borders. In contrast to states, the federal government has been slow to implement some rules.

Vaping is on the rise among youth, and the associated problems have led to a great need for urgency and significant issues for policymakers. Despite the market, policymakers should ensure that they are based on research and well-thought-out. They need efficient, cooperative, and well-funded enforcement from the federal and state governments. It is essential for policymakers to focus on reducing smoking among youth but also offers avenues to assist smokers in stopping it. In addition, policymakers should be able to adapt, as the market for electronic cigarettes is fast changing, and companies selling e-cigarettes could be more agile than regulators.

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