Electronic cigarettes in legal limbo
By MISHA DAVENPORT firstname.lastname@example.org February 1, 2011 11:32AM
Chris Ray, the owner of Cigtechs.com, presents his electronic cigarette and its accessories, Thursday January 27, 2011. | Jean Lachat~Sun-Times
Updated: May 3, 2011 4:47AM
What exactly is an electronic cigarette?
We can tell you what it’s not. Legally, it is not a cigarette, nor is it a nicotine replacement therapy that can help you quit smoking.
An e-cigarette is a battery-powered tube that resembles a regular cigarette in look and shape. It does not contain tobacco leaves, but rather houses a battery-operated heating element that turns a refillable, liquid chemical into a vapor mist that is then inhaled into the lungs like a traditional cigarette. The liquid may or may not contain nicotine and trace amounts of tobacco essence, depending on the brand and flavor purchased.
Because the vapor is inhaled directly into the lungs, there is little second-hand vapor created. And according to USA Today, more than one million Americans claim to have used the device to quit smoking since it first became available in the United States in 2006.
Schaumburg resident Chris Ray, the owner of cigtechs.com, an Internet site that sells e-cigarettes and accessories, smoked from age 18 until he was 33 (when he discovered the e-cigarette). He’s been cigarette-free for two years and his personal success with e-cigarettes lead him to invest in his Internet start-up company to sell the devices.
Despite his own story of using the device and ending his habit, he stops short of saying the e-cigarette can help a person quit smoking regular cigarettes.
“If we say use these to stop smoking, that means it’s a nicotine replacement therapy and then the Food and Drug Administration wants to regulate us,” he says. “At this point, all I can say is they are an alternative to smoking.”
Ray isn’t merely parsing words. E-cigarettes find themselves in a sort of legal limbo. The U.S. Food and Drug Administration contends the device and its accompanying products should be listed a drug device, subject to FDA approval.
An FDA study looked at 19 devices and components from two popular brands, NJoy and Smoking Everywhere. While the study indicated the analysis shouldn’t be used to draw conclusion, the FDA’s small sample test of those two brands detected tobacco-specific, cancerous nitrosamines in half the samples tested. One cartridge by Smoking Everywhere even contained a trace amount of diethylene glycol (a toxic chemical found in antifreeze).
It was enough of a warning flag for the American Cancer Society to agree with the FDA’s plans to ban the devices until such a time they can be regulated and proven safe.
The e-cigarette industry disagrees and has turned to the legal system for support.
In December, a federal appeals court in Washington, D.C., ruled in the e-cigarette industry’s favor, and in January the U.S. Court of Appeals for the District of Columbia rejected an FDA request to overturn the lower court’s ruling, setting the stage for a potential showdown before the Supreme Court on the issue of whether the devices should be regulated under existing tobacco legislation or be subject to a nationwide ban until such time they are approved by the FDA.
A bill to ban the devices in Illinois until the time at which they are approved by the FDA died in an Illinois House committee earlier this year after it passed in the state senate 49-4 last March. The bill’s original sponsor, state Sen. Terry Link (D-Vernon Hills), was contacted for this article, to see if he planned to reintroduce the bill in the new session, but did not return our phone calls by press time.
Cash-strapped states like Illinois are monitoring the situation closely. The Wall Street Journal recently estimated annual industry revenue to be around $100 million. In Illinois, e-cigarettes are exempt from the taxes levied on cigarettes.
Does the absence of a cigarette tax make them more affordable than smoking? Not exactly. A starter kit containing an e-cigarette, charger, liquid and a filter cartridge costs around $60. The liquid used by the device costs $7 to $10 for a 10-milliliter bottle, which yields 30 to 60 cigarettes. By comparison, a pack of cigarettes holds approximately 20 cigarettes and costs $8-$10.
The liquids come in flavors besides tobacco, including apple pie, double chocolate and waffle. It’s the flavors that have caught the ire of groups like the Respiratory Health Association of Metropolitan Chicago.
“You can’t tell me that these flavorings aren’t designed to attract kids,” says Joel Africk, RHAMC president and CEO.
And though online retailers like Ray have all agreed to prohibit the sale of e-cigarettes and accessories to minors, there is nothing legally preventing them from doing just that.
“I won’t sell to kids and every other supplier I know won’t either, but that doesn’t mean there isn’t somebody out there who will,” Rays says. “So, yeah. It’s a problem.”
Since e-cigarettes also don’t fall under the definition of a cigarette according to City of Chicago anti-smoking laws and do not produce any second-hand smoke, some bars and restaurants have started to allow smokers to “light up.”
Ray says as the result, the devices have gain popularity. “At this point, we are technically exempt from smoking laws and a lot of smokers are turning to e-cigarettes when they can’t smoke a traditional cigarette.”
Chicagoan Jeremy Paul Johnson, 30, has been smoking for nine years and has been using the e-cigarette for about a year and a half.
“For me, the biggest thing is I don’t smell like cigarettes when I use them,” he says. “My breath doesn’t smell like an ashtray, they don’t leave a disgusting taste in my mouth and I can use them in my apartment without having it smell like a smoker’s apartment.”
The e-cigarette kit was originally a gift from a friend who was trying to help Johnson quit. Johnson says while he is down to three cigarettes a day, he doesn’t think the device has done much to curb his nicotine addiction.
“It’s not like with the nicotine patch or gum. There’s no set of instructions on how to use the device to quit,” he says. “I know when I’ve smoked a whole pack of cigarettes, but there really isn’t a way to gauge how much nicotine I’ve taken in with the e-cigarette and I’m pretty sure I probably overdosed on nicotine when I first started using them. There’s a learning curve and you really have to self-monitor.”
“They are trendy, though,” he adds. “You can sit around the bar and smoke again with them.”
At least for now, anyway.