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Morris Manning & Martin, LLP

Increased Popularity of Vaping Drives State and Local Regulations

01.16.2019

The popularity of vaping has increased dramatically over the past several years, sparking a wave of state and local regulations that have recently been joined by federal regulations. Many of these regulations are aimed at limiting the use of vape and e-cigarette (together “e-cig”) products, primarily by underage users. For e-cig users and those in the industry, it is critical to stay abreast of laws regulating the sale, use, and advertisement of these products. This client alert provides an overview of some of the types of state and local regulations that have recently been enacted around the county.

Age Restrictions

In addition to a rise in adult use, the use of e-cigs has increased dramatically among underage users, resulting in a growing national concern and various strategies to restrict underage access to these products. FDA Commissioner Scott Gottlieb has called teen vaping an epidemic, echoing the sentiment of many.1 Federally, the legal age to purchase all tobacco products, including e-cigs, is 18.2 A number of states and local governments have raised the age to purchase e-cigs in an effort to combat teen usage. Alabama,3 Utah,4 and Alaska5 have all raised the legal age to purchase e-cigs to 19 statewide. Other states, including California,6 Hawaii,7 Massachusetts,8 and New Jersey9 have gone further, raising the legal age to purchase e-cigs to 21.

Flavor Bans

Flavored e-liquid used in vape devices has been targeted as a reason for surging underage use of e-cigs. Like age restrictions, flavor bans have been suggested as a way to curb teen use of e-cigs. Acknowledging this concern, e-cig giant JUUL recently announced it would self-impose restrictions governing the sale of certain of its flavored e-cig products.10

The FDA recently announced plans to drastically restrict sales of flavored e-cigs nationwide, including by limiting sales of flavored e-cig products to brick-and-mortar stores with an age-restricted entry or area of the store, and by requiring additional age-verification for online sales.11 In the interim, certain states and municipalities already have flavor bans in place or are considering enacting same. Several months ago, in what was anticipated to be a much closer vote, 68% of San Francisco voters approved Proposition E, banning sales of flavored tobacco products including e-liquid.12 Proposition E is said to be the most restrictive flavor ban in the county.13 Though not yet enacted, New York has announced plans to ban the sale, manufacture, and possession of flavored e-cigarettes in 2019.14

Product Packaging Laws

Of particular importance to those in the industry, certain states have enacted laws on product packaging of e-cigarettes. These laws vary by state and include a range of restrictions and requirements. For instance, Washington requires that e-liquid containers must be child resistant and labeled with a number of warnings, including those regarding the harmful effects of nicotine, to keep the vapor product away from children, and that vaping is illegal for minors.15 Rhode Island likewise requires that e-liquids be sold in child-resistant packaging, and requires that e-cigs be sold in “original, factory-wrapped package.”16 Indiana requires that manufacturers use e-liquid containers with tamper-evident and child-resistant packaging, and the packaging must identify the nicotine content and include a nicotine addictiveness warning.17

Bans on Use in Public

In addition to regulations designed to curb underage use of e-cigs, other regulations are aimed at limiting public nuisance or adverse health effects on those exposed to e-cig usage second hand. Much like the expanded restrictions on the use of combustible cigarettes in workplaces and establishments open to the public that were enacted over the past several decades, states and municipalities are now rewriting these laws to include restrictions on the use of e-cigs. These laws recognize concerns that second-hand vape “smoke” may include aerosolized nicotine and other potentially harmful substances including heavy metals.18 In California, vaping is banned anywhere the use of combustible cigarettes is banned, including in workplaces, restaurants, and movie theatres.19 So too in Hawaii, where vaping, like smoking, is banned in enclosed places that are open to the public.20 Other states have chosen to regulate vaping in public by city. For instance, as early as 2014 Chicago banned the use of e-cigs in indoor public places.21

Conclusion

The state and local regulations identified in this client alert only scratch the surface of the variety of laws and regulations applicable to the e-cig industry and consumers around the country. Additionally, existing regulations will evolve and new regulations will continue to be enacted that impact the e-cig industry and consumers. Given this, and the patchwork of federal, state, and local regulations surrounding all facets of e-cig manufacture, sale, and use, it is important for any users of e-cigs and those in the e-cig business to fully understand state and local laws surrounding vaping in their area to ensure they are not exposed to an unknown risk.

For more information about how this may affect your business and/or current or pending litigation, please contact one of the attorneys in the E-Cigarette/Vape Team.


[1] Aamer Madhani, Cities step up pressure on e-cigarette industry over teen vaping epidemic, USA Today, Nov. 13, 2018.
[2] See Summary of Federal Rules for Tobacco Retailers, U.S. Food & Drug Administration.
[8] Tobacco Business, Massachusetts Raises Tobacco Buying Age to 21, Tobacco Business Magazine, July 30, 2018.
[10] Mike Curley, Juul Pulls Flavored E-Cigs As New FDA Regulations Loom, Law360, November 13, 2018.
[11] Laure McGinley, FDA unveils sweeping anti-tobacco effort to reduce underage vaping and smoking, The Washington Post, November 15, 2018.
[12] Jan Hoffman, San Francisco Voters Uphold Ban on Flavored Vaping Products, The New York Times, June 6, 2018.
[13] Id.
[14] Jimmy Vielkind, New York Eyes Ban of Flavored E-Cigarettes, The Wall Street Journal, Nov. 8, 2018.