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Attorneys

No E-Smoking Please, We Are European!

February 28 2014

By David R. Gabor

For those of us old enough to remember, the bars, restaurants and salons of Europe were once literally awash in smoke so thick you could cut it with the proverbial knife. Starting at least a decade ago, however, certain EU countries began requiring extremely large, graphic health warnings on all tobacco products that were 60% of the packaging, as well as ensuring that cigarette packaging be childproof. These warnings included (and still do) pictures of people with their teeth falling out, or torn-out tracheas, or printed warnings stating that smoking will make users impotent, etc. Not a pretty picture. Literally. Such EU-sanctioned warnings went well beyond the generalized “surgeon general” warnings applied in small print to US cigarette packaging.

Now, as reported in the New York Times February 27, 2014 edition (Jolly, D., “Europe Puts E-Cigarettes Under Strict Rules”), Europe is moving to put e-cigarettes under a strict regimen that would ban advertising for e-cigarettes in all 28 EU nations. E-cigarettes would also have to be packaged with the same graphic health warnings that regular cigarettes now have, and the nicotine content would also have to be lowered to the same 20 mg/mL as in ordinary EU cigarettes. These regulations are slated to begin in mid-2016.

The regulation, which was approved by the European Parliament, is important because it sets a potential benchmark for standards around the world. This is particularly topical for the US market because the US FDA is expected to issue regulations for the devices shortly. Additionally, many municipalities have already banned e-cigarette “smoking” in public places. Even tony Beverly Hills, not a place one might normally consider a hotbed for “vaping,” has recently taken steps to enact such a ban.

As with the trend in the US, the EU ban stops short of regulating the sale of e-cigarettes as pharmaceuticals. This means that e-cigarettes can still be sold in ordinary shops and are not limited to sales in regulated drugstores. In neither jurisdiction can nicotine products be advertised as “smoking cessation devices” absent governmental imprimatur. In the U.S., only Nicorette-brand nicotine chewing gum now qualifies.

The regulations both in the US and in Europe are — depending on how you look at it — either a beneficial step to regulate a so-called “gateway device” that can lead to the use of cigarettes (or worse), or an unscientific step toward furthering the so-called “nanny state.”

The problem is that the science of e-cigarettes is unsettled. While many can agree that flavored e-cigarette’s (or regular cigarettes for that matter) targeted at youthful audiences might reasonably be regulated, there is no consensus on the safety of inhaling liquefied nicotine. At the moment, the science seems to indicate that it does not promote incidences of cancer because most of the carcinogens in cigarettes are in the tobacco leaf or are a byproduct of tobacco. Nicotine itself is not regulated as a carcinogen per se, although its health effects are still being debated.

Given these facts, the ban on e-cigarettes in the EU (and the nascent movement in the US) is probably more atmospherics than anything else. Critics may or may not have a point in raising the “gateway device” argument. The jury is still out on that. There is also a concern that “vaping” in public places will be considered “cool” and raise the profile of smoking in general. That, again, is possible but there is no hard science or research behind it as of yet. In fact, there is a widely-held misconception that the vapor eliminated in the process of vaping is “smoke.” In fact, it is, for most products on the market, almost pure water vapor. Again, the science is incomplete on the exact chemical composition and whether there is any “second-hand smoke” effects of the vapor, given that it is not tobacco-based.

As mentioned above, although e-cigarettes are banned from advertising themselves as smoking cessation products by the FDA and in the EU, the jury is still out on that one, as well. Scientific literature may be developed in the future that establishes that e-cigarettes are, in fact preferable to regular old “cancer sticks.” The argument can reasonably be made that vaping is preferable to smoking and that it is helpful to wean smokers from cigarettes while still feeding their nicotine addictions and satisfying the oral and digital fixations that so often are an intrinsic part of the smoking experience. From an advertising law point of view, such pronouncements are “verboten.” However, one has to wonder whether the anti-smoking lobby has put the cart before the horse on this issue. Indeed, as quoted in the New York Times Article referenced above, one British MP commented that the new EU regulations are “a massive loss for public health in Europe.”