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The Legal Issues of Electronic Cigarettes Explained

The legal issues surrounding electronic cigarettes goes back before they were even invented.  It all starts with Big Tobacco and their constant lobbying efforts to avoid regulation as much as possible.  During the Clinton administration, the FDA stated that cigarettes should be considered “nicotine delivery devices”, which would make them a drug under the law and thus regulated by the FDA. Before they made this claim, the FDA did not regulate any tobacco products so the Big Tobacco companies were able to get away with a selling their products unhindered by inspections, health testing, and so forth.

Not surprisingly, the FDA’s decision did not sit well with the Big Tobacco industry.  They unleashed their lobbyists who spent the next six years going after Congress and the high court system. Big Tobacco finally did win their case in the Supreme Court when the justices agreed that the FDA had overstepped their authority in calling tobacco products “nicotine delivery devices.”  The FDA was not allowed to treat tobacco products as drugs, thus allowing the tobacco industry much more freedom from regulations.

In 2003, electronic cigarettes became available and these really were nicotine delivery devices.  Since Big Tobacco realized what a threat e-cigarettes would be to their business, the industry lobbyists started another campaign on Capitol Hill.  They argued that electronic cigarettes must be regulated by the FDA because, as nicotine delivery devices, they were drugs.  The policymakers buckled under the pressure and electronic cigarettes were banned from being imported.  With the Family Smoking Prevention and Tobacco Control Act of 2009, the FDA was granted more powers to regulate tobacco and banned flavored tobacco.  The FDA was also able to ban importation of electronic cigarettes.

The FDA came under harsh criticism when they banned electronic cigarettes.  In one FDA press statement, the FDA had the gall to say that electronic cigarettes were not adequately tested for safety and thus inferred that people should continue smoking tobacco cigarettes instead of switching to the safer e-cigs instead. While there may be dangers with the nicotine which is found in most e-cigs (they don’t have to contain nicotine!), it is undeniable that electronic cigarettes are the lesser evil compared to tobacco cigarettes.

Luckily for smokers looking for an alternative, the US Court of Appeal in 2010 overturned the FDA’s right to regulate electronic cigarettes.  The court ruled that the FDA can only regulate e-cigarettes as tobacco products, not nicotine delivery devices.  The judges did rule that e-cigarettes could be regulated if they were advertised for therapeutic use though.  Thus, no e-cigarettes are allowed to advertise themselves as therapies for quitting smoking or even as cigarette replacements – despite the fact that electronic cigarettes have been so beneficial in helping thousands of people cut back their smoking habits or quit all together.

 The legality of electronic cigarettes varies per state and also internationally.  However, most of the laws are the same as with tobacco products.  In general, you must be at least 18 years old to buy electronic cigarettes or any of their parts.  There may also be other restrictions too, like not being able to use e-cigs in public places.

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