Recent Developments in Tobacco Use: Flavored Cigarette Bans and E-Cigarette Regulation

It is no secret that tobacco use comes with adverse health effects. However, millions of people use tobacco products worldwide. But as research into the hazards of tobacco use becomes more widely available, governments take increasingly more stringent stance on the regulation of tobacco. This article reviews some of the most recent developments in cigarette regulation and policy research.

Flavored Cigarette Bans

Flavored Camel CigarettesCountries around the world have banned flavored cigarettes. In 2009 the U.S. Food and Drug Administration (FDA) was provided authority by Congress to ban all sales of cigarettes with flavor additives, except menthol.[i] The FDA claims that flavored cigarettes attract children into a livelong addiction.[ii] The new regulations were instituted as a part of the Family Smoking Prevention and Tobacco Control Act (TCA) passed by congress to increase regulation of tobacco products. TCA also prohibits sales of tobacco without age verification, or without face to face sales, and also places more stringent limits on the ability for tobacco companies to place advertisements that could be seen by minors.

However, the U.S. is not the only country cracking down on flavored cigarette products. Last year Brazil also passed a ban on flavored cigarettes.[iii] So far the European Union has not yet banned the sale of flavored tobacco. However, in December of 2012 the EU’s European Commission announced that it will seek similar restrictions on the sales of flavored cigarettes in the E.U.[iv]  The E.U.’s rationale for the ban includes preventing children from beginning smoking, but the ban is also centered on reducing the overall appeal of cigarettes. This strategy includes even removing menthol flavored cigarettes from the market. In early July 2013 health ministers in the EU convened to draft proposed legislation, which is now up for vote before the European Parliament. If the legislation is passed new rules governing tobacco sales could be in force within 3 years.[v] The proposed legislation is supported by some E.U. countries including Finland, but other countries are citing adverse economic impacts as troubling.[vi]

E-Cigarette Health Effects

Electronic Cigarette Tobacco Control ActAnother area of contention in the tobacco policy debate is the regulation of electronic cigarettes. The World Health Organization issued a statement on e-cigarettes last June, stating that although the health and safety effects of e-cigarettes have not yet been fully studied, that the product interferes with anti-smoking policies by normalizing the act of smoking and promoting the use of tobacco generally.[vii] Additionally, the U.S. FDA has issued warnings that harmful chemicals present in cigarette smoke are detectable in e-cigarettes.

However, other researchers have countered the conclusion of these government organizations with studies that show that the number of nitrosamines (the chemical responsible for the carcinogenic effects of tobacco and nicotine) detectable in e-cigarettes is much less than 1% of the level of nitrosamines found in typical cigarettes.[viii] In fact, the level of nitrosamines is comparable to the amount found in tobacco replacement products such as nicotine gum or nicotine patches. [ix]

E-Cigarettes: Medical Product or Tobacco Product?

Because these products are feared to be a gateway path to smoking rather than a cessation tool governments have struggled to determine whether to regulate e-cigarettes as tobacco products or medical products. Despite the disagreements in research the FDA has announced that it intends to regulate e-cigarettes as tobacco products.  The EU, in updating its tobacco policies, also has proposed to treat any product with more than 4 milligrams of nicotine to be regulated as a medical product, in turn forcing it to comply with a strict and costly regimen of controlled experiments before being able to be sold.

FDA Electronic Cigarette RegulationE-cigarette manufacturers have argued that the proposed regulation of e-cigarettes as medical devices will effectively ban them by making them prohibitively expensive to produce.[x] They have also argued that they are not selling a medicinal product and that by requiring e-cigarettes to be sold in a different manner than conventional cigarettes gives conventional cigarettes an unfair advantage in the marketplace. Although, some manufactures do market e-cigarettes as a method of weaning oneself off tobacco use.

Some European courts have already decided that e-cigarettes cannot be regulated as medical products, unless they are marketed in way that touts health benefits or in a way that suggests they can help users quit smoking.[xi] The new proposed legislation in the EU would seek to overturn those precedents.

In the UK, the Medicines and Healthcare products Regulatory Authority has also announced that it seeks to treat all nicotine containing products such as sprays, patches, gum, and e-cigarettes the same because it cannot guarantee the product’s safety or efficacy.

Conclusion: To Be Determined

Although virtually all governments are aware that tobacco use is harmful, strategies to curb use of tobacco products have varied widely. It appears that the E.U. will likely follow the path of many states such as the U.S. and Brazil in banning flavored cigarettes. However, policies regard e-cigarette use are still up in the air. One major problem is that e-cigarettes have only been on the market since about 2009. Until more long term research on the effects of e-cigarettes is published, it appears that governments will still struggle with whether the products should be regulated as tobacco products like cigarettes or medicinal products like nicotine gum or patches.

[i] 111 P.L. 31 § 907 (a)(1)(A) (2009).

[ii] FDA News Release, Candy and Fruit Flavored Cigarettes Now Illegal in United States; Step is First Under New Tobacco Law (Sept. 22 2009).

[iii] Jill Langlois, Brazil bans flavored cigarettes, Globalpost (March 14, 2012).

[iv] European Commission New Release, Putting smokers off smoking, (December 20, 2012).

[v] Agence France-Presse, European Union ministers back ban on menthol cigarettes, The Raw Story (June 21, 2013).

[vi] Ice News, Finland supports EU flavored tobacco product ban (July 2, 2013).

[vii] Report by the Convention Secretariat, Electronic nicotine delivery systems, including electronic cigarettes, FCTC/COP/5/13 (June 18, 2012).

[viii] Zachary Cain, Michael Sigel, Electronic cigarettes as a harm reduction strategy for tobacco control: A step forward or a repeat of past mistakes?, 32 J. Pub. Health Pol. 16 (2012).

[ix] Id.

[x] Jeremy Laurance, Up in a puff of smoke? EU plan threatens e-cigarettes, The Independent (Marcy 29, 2013).

[xi] James Meikle, E-cigarette classification as medicines plan angers industry, The Guardian (June 12, 2013).

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