E-Cigarettes Burned Twice – Crusade succeeds

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Two different petitions before two different federal agencies, but each filed by the same crusading law professor, just caused e-cigarettes to be burned twice on Friday: they will be subject to many of the same strict regulations at the FDA as conventional cigarettes, despite claims that they are less hazardous and actually help smokers to quit, and their use aboard airplanes will be prohibited, even though supporters argued that the vapor given off is harmless.

These are major victories for nonsmoking passengers who will not have to breathe the nicotine and many cancerous substances emitted by e-cigarettes, and also for all those who are concerned about smoking, and the huge $322 billion a year the American Lung Association estimates that smoking costs all of us every year, says public interest law professor John Banzhaf, who helped start the movements which led to both decisions, and who noted that e-cigarettes can serve as a gateway to teen addiction to nicotine.

On Friday, U.S. District Judge Amy Berman Jackson in Washington, D.C. upheld FDA regulations which were triggered in part by a “Citizen Petition . . . Requesting That the FDA Assert Jurisdiction Over This New Nicotine Delivery Device AND Take Whatever Regulatory Action is Appropriate Under its Jurisdiction According to Existing Law” filed by Banzhaf in 2010.

The rules place these nicotine-generating devices in the tougher regulatory category of tobacco products, even though they contain no tobacco. This means, among other things, that their sale to anyone under 18 is prohibited, and package warning labels and government review of products are required before they go to market.

This may finally help to slow the increased usage of such devices, especially those based upon false and misleading claims about their alleged safety, and their claimed ability to help smokers quit. It may also mean an end to products carelessly assembled in tiny factories or even just in garages, often overseas with little or no product control, which may emit far more nicotine than desired, or even explode, explains Banzhaf.

The judge decided that “it was reasonable for the agency to conclude that vaping should no longer be completely unregulated, given the marked increase in use, the absence of any regulation of the products and manufacturers in the market, and the potential for public harm. . . . The agency’s interpretation is entirely consistent with the plain meaning of the statute.”

The ruling was a big loss for a major e-cigarette manufacturer, Nicopure Labs, as well as for coalitions of e-cigarette retailers and users, including the Right to be Smoke-Free Coalition and the American Vaping Association.

On the same day, the U.S. Court of Appeals for the District of Columbia Circuit upheld a U.S. Department of Transportation ruling that banned the use of e-cigarettes on commercial flights. The Department had ruled that regulation was necessary because of concern that e-cigarettes release vapor plumes containing chemicals that could be potentially harmful or at least cause discomfort to other passengers.

The federal government first restricted and then banned the smoking of tobacco products on airplanes in response to be legal petition filed by Banzhaf. He was also one of the first to raise concerns that the use of e-cigarettes was dangerous not only to the users, but also to those around them forced to breathe the toxic vapors emitted by the device.

The court’s recognition that at least seven major studies support the concern that exposure to the toxic substances emitted by e-cigarettes can be dangerous to bystanders, plus the fact that other courts have recognized that litigation against employers could be based upon even the tiny amount of tobacco smoke residue that remains behind on surfaces long after smoking has ceased, suggests that corporations should likewise interpret their rules prohibiting smoking to include the use of e-cigarettes, or face possible litigation.

The airplane case was a loss for the Competitive Enterprise Institute, a libertarian think-tank, which had argued that the ban was an “abuse of authority” since the federal statute banning smoking on airplanes, which Banzhaf helped to pass, did not include vaping. But, as the court noted, “even if e-cigarettes do not produce smoke, the verb ‘smoking’ can refer to processes where no smoke is produced.”

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