Our study was designed to describe US federal and state-level regulation profiles of e-cigarettes, with a view to inform the future of e-cigarette availability and use. Overall, we found a large dataset of regulations targeting e-cigarettes, both proposed and enacted . The available evidence suggests that state-level regulations are varied in their approach and scope, while federal regulations remain currently absent. However, the proposed federal regulations extending the FDA’s authority over e-cigarettes, if enacted, would serve to provide greater consistency in the policy approaches targeting this novel public health concern. With the implementation of these proposed federal rules, the US would join at least 22 other countries currently regulating e-cigarettes as tobacco products (as opposed to consumer products or therapeutic devices) and at least 29 other countries prohibiting sales to minors .
A key observation from our results is the principal focus on youth protection, rather than broad public health concerns. Use ban in limited venues (often in schools and childcare facilities), as well as regulations that limit marketing and advertisement to minors also primarily aim to reduce access to youth. Of note, however, is the absence of any current or planned regulations targeting flavored e-cigarette liquid (or “e-juice”). Recent evidence suggests that interest in e-cigarette flavoring is low among adolescents who do not smoke traditional or e-cigarettes . However, these data remain difficult to interpret given the absence of comparator groups of smoking and non-smoking adolescents who use e-cigarettes, for whom flavorings may significantly contribute to product interest. Additional research will be required to conclusively establish the importance of flavorings on e-cigarette uptake among smoking and non-smoking youths. Nevertheless, following the release of the FDA’s proposed rules in April 2014, a letter signed by 29 attorneys general called for tougher regulations for children, including a ban on flavorings other than tobacco and menthol, advertising restrictions, and a ban on youth-targeted marketing, similar to those enforced for conventional cigarettes .
A useful lens through which to consider how to mitigate the potential harms associated with e-cigarette use is Geoffrey Rose’s model of high-risk versus population prevention . High-risk strategies target groups for whom intervention offers the greatest benefit by reducing their exposure to a possible cause of harm . For instance, minors may constitute a high-risk group that is more vulnerable to nicotine addiction relative to adults. Regulations that limit youth exposure to the product could therefore restrict minors’ access to and use of e-cigarettes. Typically, high-risk strategies are relatively politically palatable as they avoid impinging upon the freedoms of those deemed to be at a lower risk. Such public favor likely accounts for the frequency of youth-targeted interventions across states. However, an important limitation of high-risk strategies is their failure to address the social determinants that encourage behaviors such as nicotine consumption, or vaping .
An alternative to a high-risk strategy is a population approach to prevention, which aims to minimize the barriers preventing people from making healthier choices . This comparatively radical strategy is typically enforced through comprehensive multi-level regulations, including bans on product sales or use. Population prevention targets social norms in the aim of modifying the acceptability of a potentially harmful product in society. Because this approach often takes the form of broad-spanning legislation undermining personal freedoms, population prevention may fall into disfavor for its perceived paternalism. Accordingly, few states have implemented population prevention strategies aimed at restricting the public availability and use of e-cigarettes.
Ultimately, e-cigarette regulations should be devised on the merits of their suitability and feasibility, taking into account the existing regulatory framework in a given state or country. A recent report drafted by the WHO outlined some primary objectives governments should bear in mind when drafting regulation for e-cigarettes . These include restricting e-cigarette uptake by vulnerable groups or non-smokers, and minimizing potential health risks to users and non-users. To this effect, the WHO recommends that countries consider prohibiting unproven health claims about e-cigarettes, banning the use of e-cigarettes in indoor public places, restricting e-cigarette advertising, promotion and sponsorship, standardizing product design, enforcing the display of health warnings on packaging, as well as prohibiting sale to minors . As the proposed US federal regulations only touch upon some of these concerns, states will likely continue to implement complementary regulations to address potential shortcomings.
In comparison to state laws that govern conventional cigarettes, those overseeing e-cigarettes are more variable as there are currently no federal regulations in the likes of those governing tobacco products, such as the Family Smoking Prevention and Tobacco Control Act. This federal rule prohibits the sale of conventional cigarettes and other tobacco products to minors, in addition to imposing constraints on tobacco products’ packaging, marketing, advertisement, and sponsorship. While state regulations of conventional and e-cigarettes thus present important differences, in both cases, individual states remain accountable to implement and amend smoke-free air laws, prohibit tobacco and e-cigarette use in specific venues, and increase excise taxes on these products.
Previous reviews of e-cigarette regulations have presented limited and partial portraits of the regulatory system put in place in the US, focusing mostly on e-cigarette indoor use and youth access laws [5, 15]. In contrast, this review presents a comprehensive overview of the federal and state-level regulatory approaches targeting e-cigarettes, including planned and enforced regulations addressing usage and access, but also marketing and advertisement, packaging, and taxation.
Our results should be interpreted in the context of several potential study limitations. First, all information presented herein is subject to availability in LexisNexis Academic, between January 1st, 2004, and July 14th, 2014. Second, although additional websites [7–12] were used to complement our search strategy, certain non-codified or planned regulations may have been missed due to their absence within databases. Third, municipal regulations were excluded as these were beyond the scope of our research. Finally, documents limited to nicotine-containing or tobacco-derived products were excluded, unless these explicitly included e-cigarettes.