Several years ago, when the U.S. Food and Drug Administration (FDA) attempted to ban the import and sale of electronic e-cigarettes, a court stood in the way.
In December 2010 the U.S. Court of Appeals for the District of Columbia ruled the FDA's attempt to classify e-cigarettes as drug delivery systems was incorrect. Instead, the court found that e-cigarettes were tobacco products, even though they contain no tobacco.
The FDA declined to appeal the ruling but has served notice that it might propose rules that would, in fact, regulate e-cigarettes as tobacco products. The agency suggested it could issue a Notice of Proposed Rule Making sometime this month.
Not all in the industry, it turns out, fear FDA regulation. Eli Alelov, CEO of LOGIC Technology, a maker of e-cigarettes, thinks some regulation is overdue. He told ConsumerAffairs that he wants to see manufacturing standards and age restrictions.
“I support raising the bar for the industry,” Alelov said. “Right now my biggest enemy is not the FDA, it's these 'me too' brands that come into the market with cheap electronic cigarettes, trying to make a buck, and they're putting lousy products on the market. That's hurting the entire industry.”
Alelov's company makes e-cigarettes in only two flavors – tobacco and menthol. He says the wide variety of fruit flavored e-cigarettes offered by other companies don't appeal to people who smoke cigarettes, but instead appeal to young people who don't smoke.
Children, he says, should not be using his product and he is in favor of restricting Internet sales.
“A 13-year-old girl should not have the option to buy electronic cigarettes just because she clicks on a button that says 'Yes, I'm 18' and then makes the purchase with her mother's credit card,” he said.
E-cigarettes give smokers many of the same pleasures as smoking a cigarette. They are the same shape, they generate water vapor that can be inhaled and the water vapor contains nicotine, which satisfies an addictive craving. E-cigarette makers and their growing number of customers say the products are safer than smoking, a claim hotly denied by anti-tobacco groups. There is little scientific research so far to support either side.
The industry and its passionate customers have formed the Consumer Advocates for Smoke-Free Alternatives Association (CASAA) to try and head off what they view as onerous regulations that might relegate them once again to shivering in the cold outside buildings to have a smoke. Because there is no secondhand smoke with e-cigarettes, they are currently allowed in many public venues, in a practice called “vaping” instead of smoking.
When the FDA announced it was considering a rule making on e-cigarettes, more than 27,000 people signed an online White House petition to prevent it. CASAA launched a special website to keep track of the FDA's activities.
“At this time we do not know which regulations the FDA intends to apply to e-cigarettes, but statements made by the FDA in its letter to stakeholders raises some concerns for electronic cigarette consumers and tobacco harm reduction advocates,” the group says on the site.
In its 2010 ruling, the U.S. Court of Appeals may have pointed the way, by classifying e-cigarettes as tobacco products. As such, it could be argued they could fall under the same tobacco taxes that make cigarettes so expensive, even though they contain no tobacco. Whatever the FDA decides to do, its impact could well be felt internationally.
“The FDA is a big player in the global market,” Alelov said. “I think some countries are waiting to see what the American FDA is going to say about this product.”
Whatever the decision may be, Alelov says he thinks within five to seven years, nearly half of today's smokers will be “vaping” instead.