FDA to Regulate E-Cigarettes as Tobacco Products

Back in 2010, the D.C. Circuit Court ruled that the FDA did not have the authority to regulate e-cigs as medical devices as long as they weren't marketed with therapeutic claims -- as in, "it'll help you quit smoking." Well, when the D.C. Circuit closes one door, the FDA breaks open a window.

The FDA is set to begin regulating e-cigs as tobacco products, the Los Angeles Times reports. Today the FDA proposed rules that would ban the sale of e-cigarettes to minors (already outlawed in some states), while continuing to allow advertising, online sales (presumably with online age verification), and flavored liquids that might or might not appeal to children.

The proposed regulation would also require that e-cigarette packaging carry the following message:

WARNING: This product contains nicotine derived from tobacco. Nicotine is an addictive chemical.

What Are Electronic Cigarettes?

You've seen them around. E-cigarettes are hand-held devices that allow the user to draw a nicotine-containing vapor into their lungs. It's sort of like cigarettes, except with vapor instead of smoke. (Contrary to popular belief, the vapor is not water vapor. All electronic vaporizers contain a solution of either propylene glycol or vegetable glycerin, according to ABC News.)

Some commonly espoused advantages of e-cigs include:

• They help people quit smoking... maybe (The Washington Post has more to say on that).
• They don't create second-hand smoke (only vapor).
• Using e-cigs can be much cheaper than smoking cigarettes.
• They don't use fire. That's a big advantage, as nearly 1,000 Americans a year are killed in house fires caused by tobacco smoking.

Some Disadvantages Too

On the other hand, critics often call attention to some purported drawbacks to e-cigs. For example:

• If you modify one improperly, it might blow up on you.
• The vapor still has some smell, but much less than cigarette smoke.
• The vapor liquid might contain carcinogens (other than nicotine), as USA Today points out.
• As with cigarettes, kids could potentially get their hands on them.

So how will this all pan out? Oh, wild guess, more litigation? But hopefully not. The FDA and the e-cig manufacturers don't have to be enemies. Both have the same goal: to insure that adults have a safe product that is an alternative to cigarettes.

The FDA's proposed e-cigarette regulations are set to be posted on Regulations.gov Friday morning. That's when the 75-day public comment period will begin.

Related Resources:

• States Take the Lead on E-Cigarette Legislation, According to WestlawNext (FindLaw)
• E-Cigarette, Cigar, Hookah Restrictions Laid Out in New FDA Rules (FindLaw's Courtside)
• E-Cigarettes: 5 Burning Legal Issues (FindLaw's Law and Daily Life)
• Can Electronic Cigarettes Challenge Big Tobacco? (Time)