Health and government officials are at odds with the tobacco industry in the wake of Missouri Gov. Jay Nixon's Monday veto of legislation prohibiting alternative nicotine products, vapor products or electronic cigarettes from being regulated and taxed as tobacco products.
Senate Bill 814 extended the requirements of tobacco sellers to the vendors of electronic cigarettes and vapor products, including banning sales to minors, while exempting the electronic and vapor products from being taxed and regulated as tobacco products, according to the bill's summary.
The bill also requires the sellers of these alternative nicotine products to acquire retail sales tax licenses, which is already required for all businesses. It also would require the Department of Revenue to furnish to the Division of Liquor Control (DLC) a list of every establishment that sells the products. DLC would have the authority to inspect all stores for compliance. However, the act also modifies provisions relating to those inspections.
"This bill, which is supported by sellers of such products and at least one major tobacco manufacturer but is opposed by leading health organizations, creates a faÃ§ade of regulation and is actually harmful to Missourians because of the special exemptions it provides for these dangerous products," Nixon stated in his veto message to lawmakers.
He also said the veto is supported by major health organizations such as the Missouri State Medical Association, American Cancer Society, American Heart Association, Tobacco Free Missouri and others.
"It was really a wolf in sheep's clothing type of bill we felt," said Jeff Howell, director of government relations for the Missouri State Medical Association. "It was like, here is a way to keep the products out of the hands of minors, and by the way, you can't tax us or regulate us anymore."
There is a lot of mixed information on the subject of e-cigarettes, but it is still a drug and it still has nicotine so it should be regulated, Howell said, noting there is no reason to pass a bill that bans further regulation before the FDA publishes its information and recommendations.
New federal rules
"Public health-based regulation of these products can help reduce the death and disease toll from tobacco use," Jenny Haliski, press officer for the FDA's Center for Tobacco Products (CTP), said in an email. "The FDA has proposed a historic new rule that would extend the agency's authority to regulate additional products that meet the legal definition of a tobacco product, such as electronic cigarettes, cigars, pipe tobacco, certain dissolvables that are not smokeless tobacco, nicotine gels and water pipe tobacco."
These new FDA regulations would require the unregulated marketed products to register and report product ingredients, only market the products after FDA review, not distribute free samples, and only make direct and implied claims of reduced risk if the FDA confirms that scientific evidence supports the claim, according to a press release form the FDA. The regulations would also set age restrictions on sales, require legal identification for purchase, require health warnings on the product and prohibit vending machine sales, unless in a facility that never admits youth.
The U.S. Court of Appeals recently held that e-cigarettes and other products made or derived from tobacco can be regulated as tobacco products under the Federal Food, Drug and Cosmetic Act of 2009, and the products are not drugs unless they are marketed for therapeutic purposes. There are currently no electronic cigarettes approved by FDA for therapeutic purposes.
As for the science on e-cigarettes, the FDA has done independent research as well as gather many peer-reviewed articles by independent researchers. The majority of the FDA's and others' findings state that the products in question have not been on the market long enough to gather sufficient data, but the studies have also concluded the following:
• E-cigarette aerosols may include harmful and potentially harmful constituents. Some materials may be aerosolised and have adverse health effects.
• Data on e-cigarette subjective effects (such as anxiety, restlessness, concentration, alertness and satisfaction) and withdrawal suppression are limited and inconsistent.
• Scientific evidence regarding the human health effects of e-cigarettes is limited and the health impact of e-cigarettes, for users and the public, cannot be determined with currently available data."
The industry viewpoint
The FDA's lack of conclusive data has led one of the largest tobacco manufacturing companies to support similar bills to Missouri's Senate Bill 814 in 39 other states, said David Sutton, media relations manager for Altria.
"We support a number of states that have taken on legislation to do that (set age restrictions and tax exemptions)," Sutton said. "We don't think these products should be taxed like cigarettes, they are completely different. They don't emit smoke. They don't burn. There is no tobacco in the product, and they emit a water based e-vapor."
Sutton refers to e-cigarettes as e-vapor products. The company he speaks for, Altria, is the parent company of tobacco giant Phillip Morris and Numark, an e-cigarette company. Altria controls 51 percent of cigarette sales, 55 percent of smokeless tobacco sales and 29 percent of machine-made cigar sales, Sutton said.
The are no definite calculations of the market share for the "e-vapor" products, Sutton said. The numbers for Altria's e-vapor market share should be available in 2015, he said.
After saying that the e-vapor products should not be treated as tobacco products, Sutton acknowledged all of his business's e-vapor products derive their nicotine from tobacco.
Local seller's view
A manager of a local store that specifically sells the vapor-based products has similar sentiments.
"There should be some regulations with the sale of e-cigarettes and types of products that contain nicotine," said Jason Head, manager for Aqueous Vapor in Independence and Jefferson City. "Obviously, you should not sell them to people under the age of 18. It contains nicotine, and that is a addictive chemical."
Aqueous Vapors has a store policy to not sell any of its inventory to minors, even the vapor products without nicotine. This is true for all seven of the company's stores in Missouri and Kansas. Head said he knows many different business owners in that market and none sell to minors.
Also, he said he supports not classifying the e-cigarette as a tobacco product.
"A lot of the legislation that is going on right now seems to be a preemptive type of movement because this is a different type of product," Head said. "Vaping, we call it vaping, is less harmful than cigarettes according to the research that I have seen that is coming out... People see vapor and unfortunately they associate it in their mind with smoke and we don't have any hard science that says this is bad for you, or as bad for you as tobacco is."
The reason tobacco is taxed heavily is the burden it puts on society from the health issues related to it, Head said. He attributed some of the health issues to the more than 4,000 different chemicals in cigarettes. His vapor products, however, contain only four chemicals: vegetable glycerine, propylene glycol, nicotine and the flavorings. He added that the FDA has approved all the chemicals individually for consumption, but the combination of them has not been FDA approved.
Head's store sells "tank" style e-vapor products that refill a reservoir of the flavored nicotine liquid. The other type of e-vapor product is called the cartridge style and can be more commonly found in tobacco stores. The FDA already set regulations for traditional tobacco stores that do not allow minors in the building and require patrons to have their identification checked, said Brian Faulkner, store manager for We B Smokin.