Public health groups oppose bills banning sale of e-cigarettes to minors

By Paul Brennan | Iowa Watchdog

DES MOINES, Iowa — The Iowa Legislature’s first try at regulating e-cigarettes got off to an unusual start, as public health groups strongly opposed bills introduced to prevent the use of the devices by minors. Their opposition is based on a desire to have e-cigarettes classified as tobacco products, even though the devices contain no tobacco.

The state’s only regulation regarding e-cigarettes now is an executive order issued by Gov. Terry Branstad banning their use by state employees on state property.

Because e-cigarettes heat a liquid to produce vapor rather than burn tobacco, they are not covered by laws governing the sale or use of cigarettes or other tobacco products.

Bills have been introduced in the House and Senate to ban the sale of e-cigarettes to minors, as well as the use of those devices by anyone younger than 18. Legislators in both chambers have expressed concern about minors using nicotine.

It’s not unusual for business groups and public health advocacy groups to be on opposite sides when new regulations for consumer goods are proposed. This time, however, the traditional roles were reversed.

Speaking on Tuesday to a House subcommittee hearing on that chamber’s bill, lobbyists representing e-cigarette retailers came out in favor of the new regulations.

The only opposition to the bill came from the American Cancer Society, the American Heart Association and the Iowa Public Health Association. All three objected to the fact the bill was drafted with no input from public health experts. But the their primary objection was that the bill doesn’t not define e-cigarettes as a tobacco product.

Jeneane Moody, executive director of IPHA, explained that a federal court ruling allows products that contain no tobacco to be regulated as tobacco products.

In 2010, the U.S. Court of Appeals for the D.C. Circuit ruled that products “made or derived from tobacco” could be regulated by the Food and Drug Administration under the Tobacco Control Act of 2009. Since the nicotine in e-cigarettes is derived from tobacco, the court further ruled they are covered by that act.

Moody and the other public health group representatives urged the subcommittee to follow the federal court’s example, because defining e-cigarettes as something other than tobacco products would exempt the devices from other anti-smoking laws, especially the Iowa Smokefree Air Act.

Passed in 2008, the act bans smoking in most public places. Moody argued that allowing e-cigarettes to be used in places where cigarettes are banned would undermine the anti-smoking “social norms” built up over the past few decades and which, she says, have led to a decline in smoking. Decreasing the stigma associated with cigarettes or electronic devices that resemble cigarettes could reverse that decline and damage the public’s health, Moody contended.

The only evidence presented to the committee on the health effects of e-cigarettes was anecdotal and came from Kristy Stoneburner, the manager of a Central Iowa E-Cigarettes retail outlet.

A former four-pack-a-day smoker suffering from chronic obstructive pulmonary disease, Stoneburner said that switching to e-cigarettes dramatically improved her health.

“All them stairs out there, a year ago I wouldn’t have been able to come up all them stairs. No way.”

Stoneburner said she has seen similar improvements in many of her customers.

“It’s making it easier for these people to breathe,” she told the subcommittee.”They’re not getting all these toxins into their lungs.”

Stoneburner called e-cigarettes “life saving.”

There was little doubt as to what conclusion the subcommittee would come to, since Chairman Chip Baltimore, R-Boone, had been seen earlier that day using an e-cigarette on the floor of the House. The subcommittee sent the bill to the commerce committee for consideration.

The same faces and arguments appeared later Tuesday afternoon on the Senate side of the Capitol, where a subcommittee was considering the Senate’s version of the bill. The result was also the same: The subcommittee sent the bill to the full Human Resources committee for consideration.

The only difference was subcommittee chairman Sen. William Dotzler, D-Waterloo, engaged more directly with the bill’s opponents.

Dotzler pointed out that it might not make sense to regulate e-cigarettes as tobacco products, since nicotine can be derived from other plants, as well. Any e-cigarette using nicotine from tomatoes or other sources would be exempt from regulation if the devices were defined as tobacco products.

And in response to being urged to wait for guidance from the FDA before moving the bill forward, Dotzler asked when that guidance would be published.

No one knew.

Even the FDA doesn’t know. FDA spokeswoman Jennifer Haliski told Iowa Watchdog, “The last announced date for the guidelines was December 2013.” She stressed, however, it was just a target date.

The FDA has completed it guidelines but was required to submit them to the Office of Management and Budget for review before publication, Haliski said. OMB has not announced when that review will be completed.

Contact Paul Brennan at pbrennan@watchdog.com

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