By Brady Dennis,
The Food and Drug Administration said Thursday that it intends for the first time regulate the booming market of electronic cigarettes, as well as an array of other products such as cigars, pipe tobacco and hookahs.
The move would begin to place restrictions on e-cigarettes, a nearly $2 billion industry that for years has operated outside the reach of federal regulators. If adopted, the government’s plan would force manufacturers to curb sales to minors, stop handing out free samples, place health warning labels on their products and disclose the ingredients. Makers of e-cigarettes also would be banned from making health-related claims without scientific evidence
The FDA’s proposal stops short of broader restrictions sought by many Âtobacco-control advocates. Regulators at this point are not seeking to halt online sales of e-cigarettes, curb television advertising, or ban the use of flavorings such as watermelon, grape soda and piña colada — all tactics that critics say are aimed at attracting young smokers and that have been banned for traditional cigarettes.
Those restrictions might come eventually, FDA officials said, but not before more rigorous research can establish a scientificbasis for tougher rules.
“Right now, for something like e-cigarettes, there are far more questions than answers,†said Mitch Zeller, director of the FDA’s Center for Tobacco Products.
He said Thursday’s action is about expanding FDA’s authority to products that have been “rapidly evolving with no regulation whatsoever,†in order to create a foundation for broader regulation in the future, adding, “It creates the framework. We’re calling this the first step. . . . For the first time, there will be a science-based, independent regulatory agency playing a vital gate-keeping function.â€
E-cigarettes vary from brand to brand, but they generally resemble the size and shape of traditional cigarettes. Instead of burning tobacco, the battery-powered devices heat up flavored, nicotine-laced liquid, turning it into a vapor that the user inhales, or “vapes.†Supporters say that makes e-cigarettes an attractive alternative to their Âcancer-causing tobacco counterparts.
Congress passed a law in 2009 giving the FDA broad power to regulate cigarettes, including requirements for new warning labels, restrictions on ads and explicit approval of new products. The law also gave the FDA the authority to broaden its jurisdiction over other tobacco-related products. While the agency has indicated for years that it planned to do just that, action has been slow in coming.
Reactions to Thursday’s announcement from the e-cigarette industry, public health officials and consumer advocates was swift — and mixed.
Matthew Myers, president of the Campaign for Tobacco-Free Kids, called the FDA’s action an important step but said that it is “inexcusable†that the agency had taken so long to act. “In the absence of any meaningful regulation, the e-cigarette manufacturers have acted as if it’s the wild, wild West, with no rules and no restraints,†Myers said. “Their advertising is exactly the same type of advertising that made cigarettes so appealing to young people†decades ago.
He said FDA needs to move quickly to finalize Thursday’s proposal and conduct the scientific research it will need to put more stringent rules in place down the road on marketing practices and flavors.
“They can’t move forward at the same pace that they have been moving and do their job protecting public health,†Myers said. “We can’t waste another five years; this cannot take that long. There is a moral and public health imperative for them to treat this with the urgency it deserves.â€
Still, whatever changes are coming won’t happen overnight. The public will have 75 days to comment on the proposal. After the FDA sorts through a likely tidal wave of responses and finalizes its regulations, companies will have to begin complying almost immediately with the proposed age and identification restrictions. But they will have two years to submit applications to the FDA to approve their products, which can remain on the market in the meantime.
The FDA’s effort to begin overseeing the sprawling e-cigarette market comes at a critical time. Sales have doubled year after year, with no signs of slowing, according to some industry analysts. That pales in comparison with the estimated $80 billion-a-year U.S. market for conventional tobacco products, but the gap is shrinking steadily. In addition, tobacco giants such as Lorillard, Reynolds and Altria have entered the Âe-cigarette market in recent years, joining hundreds of smaller manufacturers.
Some industry advocates worried Thursday that federal regulation will benefit only a handful of those large companies, who have established distribution channels and the money and manpower needed to file the streams of paperwork that will now be required to seek FDA approval of all e-cigarette products.
“This is worse than I expected,†said Greg Conley, a board member of the American Vaping Association, who said he welcomed the age-restriction rules but had hoped the FDA would grandfather in existing products, rather than force e-cigarette makers to file lengthy applications for any product on the market dating to early 2007. “A lot of these companies, they are supporting several employees, investing any profits back into their buisness … They can’t afford this, and it’s going to lead to a whole lot of consolidation and increased prices for consumers.â€
Not everyone in the e-cigarette industry bristled at Thursday’s proposal. Indeed, some of the larger players in the e-cigarette market praised FDA for committing to a science-based regulatory process, which they hope will allow them to make a strong case that e-cigarettes have the potential to reduce tobacco-related harm and be an overall positive for public health.
“What they did today was very encouraging … We’ve already done many things to prepare ourselves and act responsibly,†said Miguel Martin, president of Logic Technology Development o
