In a rush to keep electronic cigarettes out of children's hands while the federal government creeps forward with a proposed national ban for minors, experts say that many states are passing laws that could mean fewer restrictions on the nicotine devices later.
Lawmakers last month made Missouri the 41st state to outlaw selling e-cigarettes to minors. Age restrictions have wide support, but Gov. Jay Nixon and public health advocates opposed a piece of the legislation that prevents tobacco taxes or regulations from being imposed on the electronic devices, which heat liquid nicotine into an inhalable vapor.
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E-cigarette makers have been in a tug-of-war with state and federal governments since the battery-powered devices first were sold in the U.S. in 2007.
A 2009 law gave the U.S. Food and Drug Administration the power to regulate a number of aspects of tobacco marketing and manufacturing. It first said it planned to assert authority over e-cigarettes in 2011, but it hasn't yet done so.
In April, the FDA for the first time proposed a set of regulations for e-cigarettes, including banning sales to minors and requiring health warning labels, as well as approving new products. The agency has said its proposal sets a foundation for regulating the products but the rules wouldn't immediately ban the wide array of flavors of e-cigarettes or curb marketing on places like TV.
In the absence of regulation, members of Congress, state leaders and public health groups have raised concerns over e-cigarettes and questioned their marketing tactics. An FDA official said the agency has similar concerns and acknowledged that it has taken the agency too long to act.
"Part of what is driving those elected officials are public health concerns that we share about any aspect of the marketing of this emerging technology that is appealing to kids," Mitch Zeller, director of the FDA's Center for Tobacco Products, said in a recent interview with The Associated Press at the agency's sprawling campus in suburban Maryland. "It took us too long to get the proposed rule out and we don't intend a repeat of that as we go from proposed to final."
Zeller did not give a timeline for when the final regulations would be in place, but has said any rules will have to be grounded in scientific evidence.
Scientists haven't finished much research on e-cigarettes, and the studies that have been done have been inconclusive. The government is pouring millions into research to supplement independent and company studies on the health risks of e-cigarettes and other tobacco products — as well as who uses them and why.
Most lawmakers, as well as e-cigarette manufacturers, agree that they don't belong in children's hands. Yet as states enact age restrictions, experts say lawmakers could also be making it more difficult to regulate and tax e-cigarettes down the road if the FDA determines they're unhealthy.
Of the states that have banned e-cigarette sales to minors, 31 have specified that e-cigarettes are "alternative nicotine" or vapor devices, not traditional tobacco cigarettes, according to the National Conference of State Legislatures.
Some lawmakers say these definitions would prevent e-cigarettes from later being treated as a tobacco product, but others disagree. Missouri's law apparently is the first to explicitly state that e-cigarettes can't be regulated or taxed as a tobacco product, said Michael Eriksen, dean of the School of Public Health at Georgia State University.
Regulations that currently apply to tobacco would restrict where the electronic cigarettes can be used, and how and where they can be advertised, among other things. Such regulations also would likely end the use of candy-flavored nicotine solutions, Eriksen said.
Laws skirting those restrictions have the blessing of e-cigarette companies, which contend that the devices aren't the same as regular paper-and-tobacco cigarettes and don't pose the same public health risks, so taxing and regulating them the same way doesn't make sense.
Just six states classify e-cigarettes as a tobacco product, the NCSL reports. Only two states, Minnesota and North Carolina, have approved taxes on e-cigarettes, while three others, Michigan, Ohio and New York, are considering it.
Instead of adding e-cigarettes to existing tobacco laws that ban smoking indoors or tax the products, lawmakers in Missouri and possibly other states will have to create new tax structures and write regulations from scratch, said Mark Gottlieb, executive director of the Public Health Advocacy Institute at Northeastern University School of Law in Boston.
It's a lot of work, he said, and unlikely to happen.
"In practice," Gottlieb said, "this can hamstring the state and what it can do."
Felberbaum reported from Richmond, Virginia.
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