E-cigarettesNational Environmental Health AssociationJuly 2014

Andrew Roszak, JD, MPA, EMT-P

Senior Director

Environmental Health, Pandemic Preparedness and

Catastrophic Response

@AndyRoszak

Electronic Cigarettes (E-cigarettes): vapor pens, vapes, hookah pens, e-hookah

1st Generation

2nd Generation

3rd Generation

Various Forms of E-cigarettes

E-cigarette Refills

Defined

E-cigarette or e-hookah means any electronic oral device or nicotine

delivery device or nicotine delivery device, such as one

composed of a heating element, battery, and/or electronic circuit,

which provides a vapor or nicotine or any other substance, and

the use or inhalation of which simulates smoking. The term shall

include any such device, whether manufactured, distributed,

marketed or sold as an e-cigarette, e-cigar, e-pipe- e-hookah,

hookah pen or undery any other product name or description.

Public/Environmental Health Impact

User

Bystanders

Air Quality

Child Poisonings

Trash/ Landfills

Exposures

• 219%INCREASE 2013 vs. 2012 E-cigarette

Devices and Liquid Nicotine Reported Exposures.

• This year 1,190 exposures through April.

• Slightly more than half of these reported

exposures have occurred in young children under

the age of six.

How E-cigarette Control Differs

• No federal regulation• Few excise taxes at local level• Can be sold to minors• Warning labels not required• No marketing restrictions• No law for commercial air travel

Preemption: Setting the Stage

The FDA has authority under a 2009 law (21 U.S.C. 387-387 (u)) to regulate cigarettes, smokeless tobacco and roll-your-own tobacco but must issue new rules before regulating e-cigarettes, cigars, hookahs, water pipes and

other tobacco products.

“The Tobacco Institute and tobacco companies’ first priority has always been to preempt the field, preferably to put it all on the Federal level, but if they can’t do that, then at least on the state level because the health advocates can’t compete with me on the state level” – Victor Crawford, former Tobacco Institute Lobbyist

“While we’re not married to any particular form of pre-emption language, we’re dead serious about achieving pre-emption in all 50 states.” – Tina Walls, Phillip Morris

Preemption Mechanics: In General

Forms of Preemption

Preemptory law comes in different forms and can be supplied by different vehicles:• Legal preemption resulting from litigation efforts • Federal preemption resulting from multiple sources of Federal government power (in this case, the FDA gets its power

from the Federal government’s inherent power to designate bodies for regulatory purposes and from 21 U.S.C. 387 f (d)), trumping local sources of power while operating under the Supremacy Clause

Regardless of the vehicle supplying the preemption authority, the power can also be implicit where Federal regulations

“occupy the field” or explicit (express preemption).

Where the Question of Preemption Originates From

The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the

states, are reserved to the states respectively, or to the people.”

-Makes clear that the Federal government is limited only to the powers granted in the Constitution

-Defines the concept of Federalism and how the Federal, state, and local governments interact with one another and co-exist

(see “and the people” text) while preserving the framer-intended separation of powers among the different levels of government

But where do the powers delegated to the United States end?

When preemption is OK…

Creative Commons Flickr/WILLARD

Creative Commons Flickr/a.koto

Creative Commons Flickr/NRCgov

Creative Commons Flickr/NRCgov

OVER 172 LOCAL ORDINANCES EXIST TODAY.

Preemption Mechanics: Application Example

Federal Law ApplicationStep 1: Look to the language of the

Constitutional amendments. Recall that the Tenth Amendment reserves for the states and the people what is not explicitly designated to the Federal government. This part is always arguable because the Constitutional amendments are vague by nature.

Step 2: Look to the language of Federal Regulations and statutes. Remember to examine what the statute says and does NOT say. Implicit or explicit preemption can result.

Step 3: Apply the correct level of scrutiny for regulation. If the proposed rule survive the heightened scrutiny, then regulation can be upheld in spite of the broad constitutional language.

Tenth Amendment: Federalism

ECig Industry Potential Set of Regulations: The

“Deeming Rule” proposed in April 2014, still pending

Constitution Potential Outcome: If e-Cigarettes are “deemed” tobacco products, then the FDA can regulate them as such, invoking age restrictions, sales restrictions related to the age requirement goal (i.e. vending machine sales), and other manufacturing, advertising and packaging requirements

Effect: Restricts the power of state and local governments to regulate tobacco in these same ways even if based on additional health concerns.

To survive constitutional scrutiny, the local or state ordinances must pass muster under the designated scrutiny test for that particular amendment question

Preemption Mechanics: Application Example

Federal Law Application

Step 1: Look to the language of the Constitutional amendments. Recall that the Tenth Amendment reserves for the states and the people what is not explicitly designated to the Federal government. This part is always arguable because the Constitutional amendments are vague by nature.

Step 2: Look to the language of Federal Regulations and statutes. Remember to examine what the statute says and does NOT say. Implicit or explicit preemption can result.

Step 3: Apply the correct level of scrutiny for regulation. If the proposed rule survive the heightened scrutiny, then regulation can be upheld in spite of the broad constitutional language.

First Amendment: Freedom of Speech

ECig FLCA Regulations: banned certain advertising on mediums of electronic communication governed

by the FCC

Constitution

Outcome: Federal Cigarette Labeling and Advertisement Act (preemption provision) prohibited states and localities from enacting ordinances limiting the content of cigarette advertisements and promotions

Effect: States can no longer limit cigarette advertisements and promotions based on their content even when cause for concern is for health reasons; states can still regulate these promotional materials by way of time, place, and manner (known as the Federal Preemption Exemptions)

Example 1

A town can prohibit tobacco advertising within

1,000 feet of schools because tobacco

products are illegal for minors to purchase

True or False?

Example 2

A town can prohibit all billboards around

schools?

True or False?

Preemption Mechanics: Why it Matters

Whether preemption will operate to remove state police power and the inability to create local

regulations and ordinances will change the industry landscape

The Industry Landscape•Current situation: a combination of the lacking Federal regulatory regimes and state governments taking a hands-off approach has encouraged local bodies to develop eCig ordinances ranging from usage to sales to taxes and advertising; over 172 local ordinances exist today. •Possible Regulations in the Future: if the “deeming rule” works to incorporate e-cigarettes into the FDAs definition of tobacco products, it will be able to impose other federal regulations on the industry like age related sales prohibitions, health risk disclosure requirement on packaging and advertisements, etc. •Player Sentiment:

The tobacco industry remains pro preemption so that local health departments can’t regulate them; they prefer regulations on the Federal level Local health departments are adverse to Federal laws that would remove their ability to regulate on the local level

Preemption Mechanics: Why it Matters

Determining if preemption is the best option requires understanding how it works

at the macro level and the effects felt on the local level. Federal regulations could

put a stop to the state by state patchwork of regulations that might be deemed

infeasible as a macro-level strategy, but it would be challenging. There are pros

and cons to be considered

Pros: Cooperation amongst the tobacco industry and some regulatory proponents, Federal preemption is less of a threat at the Federal level than at the state level to local regulatory efforts

Cons: Harder to reverse once Federal regulations have been implemented, takes away police power from the states

E-Cigarette Legislative Environment: The Most Common Forms of Regulation

State Regulatory Strategies•Tax Regimes – excise and sales taxes (only MN currently has an excise tax in place); probably the most effective of all regulatory strategies •Age Restrictions – statewide bans on sales to minors (defined by <18 or <21 in some jurisdictions) •Permitting Requirements – in order to sell e-cigarettes just like for executing tobacco sales, the retail business must have a license to do so

Local Regulatory Strategies•Usage Ordinances – restrictions on e-cigarette use indoors including public places and work places; few local jurisdictions have completely banned e-cigarette usage •Age Restrictions – usually statewide, but could potentially involve just one locality too•Other Commercial Restrictions – prohibition on other sales activities such as vending machine sales, point of sale warning sign requirements*

E-Cigarette Regulations by State: A Bird’s Eye View on Taxes & Age Bans

Note: If the Federal government passes legislation on restricting e-cigarette sales to minors, the state and local laws trying to do the same thing will become moot and this map would change drastically.

E-Cigarette Regulations by State & Localities: A Bird’s Eye View on Usage Bans

Usage Regulation Stats: State Laws Restricting E-cigarette Use in 100% Smokefree Venues: 3State Laws Restricting E-cigarette Use in Other Venues: 10Local Laws Restricting E-cigarette Use in 100% Smokefree Venues: 172

Local Ordinances In Action: Large City Overview

NYC - increased age to 21 (only one other small in Mass. also imposes this age restriction),

mandatory requirement for stores to post signs regarding the age requirement, tried for

point of sale signage regarding e-cig usage risks (preempted), restrictions on vending

machine sales, use in public places banned, tax levied on flavored tobacco (not

preempted)

Phil. - Prohibits use in public and enclosed areas (includes exceptions like for private clubs

and other places of that nature), also some restrictions on workplaces, prohibits the sale

to minors

Boston - prohibitions on e cig use in the workplace

Seattle - restrictions on sales to prevent minors from getting ahold of the ecigs, age

restriction (18), adds new section about e cig smoking in public places and places of

employment 

Local Ordinances In Action: Large City Overview

LA - the only jurisdiction which lumps e cigarette smoking into the generic /

conventional smoking definition and parallels usage restrictions set out for

conventional smoking (i.e. e cigs are banned in public places except for

vaping lounges and 21+ nightclubs and bars)

San Fran - restrictions on use and sales (b/c tobacco permit required to sell);

where tobacco sale prohibited, so too are eCig sales; in this way, lumps

the e cigs in with conventional tobacco products but simply applies the

same rules instead of expanding the definition of "smoking" like LA does

Local Ordinances In Action: Small City Examples

• Watauga, TX - banned sale of e-cigarettes completely; conventional smoke sales are still

allowed

• Georgetown, TX – electronic cigarettes fall under the same ban as a traditional cigarette in

Georgetown, prohibits the sale of electronic cigarettes to people under the age of 18,

prohibits vending machine e cig sales, adds electronic vaping devices to the existing laws

that prohibit tobacco use in public places like stores, hotels, restaurants and bars, and has

become one of the first Texas cities to ban e-cigarettes on city property

• Pittsburg, CA – city just voted 5-0 earlier in the month to ban the public use of e-cigarettes• Other California cities have passed bans on e-cigarettes, (Richmond, Carlsbad, Long Beach,

Walnut Creek) as well as counties (Santa Clara, San Bernardino) including Contra Costa County.

Other Interesting Local Ordinances

Other Interesting Local Ordinances

Petco Park in San Diego does not allow the smoking of e-

cigarettes inside the ballpark

A committee at Louisiana State University has voted to

recommend e-cigs be banned from the campus

MARC train does not allow e-cig usage on the trains in

Maryland

NACCHO’s Support for Local Health Departments

NACCHO is the national organization representing

2,800 local health departments

naccho.org

Big Cities Health Coalition is a forum for the leaders of the 20 largest metropolitan

health departments

bigcitieshealth.org