(Oct. 15, 2014) In a report entitled Electronic Nicotine Delivery Systems, to be discussed at the Conference of the Parties to the World Health Organization (WHO) Framework Convention on Tobacco Control, scheduled for October 13-18, 2014, the WHO recommends strict regulation of electronic cigarettes. (Taylor Gillan, World Health Organization Calls for Strong Regulation of Electronic Cigarettes, PAPER CHASE (Aug. 27, 2014); Electronic Nicotine Delivery Systems, FCTC/COP/6/10 (July 21, 2014), WHO website; WHO Framework Convention on Tobacco Control, WHO website (last visited Oct. 9, 2014).)
The report characterizes electronic nicotine delivery systems (ENDS), “of which electronic cigarettes are the most common prototype,” as delivering an aerosol by heating a solution inhaled by users, with the solution’s chief constituents by volume being, aside from nicotine (if it is present), propylene glycol and flavoring agents. The report notes that while some ENDS have the shape of their conventional counterparts, such as cigarettes, cigars, and pipes, others may be in the form of “everyday items such as pens, USB memory sticks, and larger cylindrical or rectangular devices.” (Electronic Nicotine Delivery Systems, supra, ¶¶ 3 &4.)
The report suggests a number of regulatory options for states that have not yet banned the e-cigarettes, among them the following:
- Prohibit the sale to minors of ENDS products and eliminate vending machines “in almost all locations.” (Id. ¶ 51).
- Prohibit manufacturers and third parties from making health claims for ENDS, e.g., that they are smoking cessation aids, until they provide convincing scientific evidence in support of their claims and obtain regulatory approval. (Id. ¶ 40.)
- Legally request ENDS users not to use the products indoors, “especially where smoking is banned until exhaled vapour is proven to be not harmful to bystanders and reasonable evidence exists that smoke-free policy enforcement is not undermined.” (Id. ¶ 41.)
- Consider implementation of effective restrictions on ENDS advertising, promotion, and sponsorship (id. ¶ 42); have the marketing regulated “by an appropriate government body” or else impose an outright ban on such marketing, which “is preferable to the implementation of voluntary codes” on it (id. ¶ 43); and impose certain minimum requirements on ENDS’ advertising, promotion, and sponsorship so that it is not made appealing to non-smokers or non-nicotine users or minors (id. 44).
- Make any advertising, promotion, and sponsorship of ENDS that contain nicotine or may be used with nicotine solutions clearly state nicotine’s addictive nature and the products’ purpose to deliver nicotine and “[p]rohibit suggestions that ENDS have positive qualities as a consequence of the addictive nature of the product.” (Id. ¶ 45.)
- Require transparency from ENDS and tobacco companies that advocate for and against, directly or indirectly, legislation and regulation, to protect against vested commercial interests in those products. No matter what role the tobacco industry plays in the production, distribution, and sale of ENDS, the report avers, “this industry, its allies and front-groups can never be considered to be a legitimate public health partner or stakeholder while it continues to profit from tobacco and its products or represents the interests of the industry.” (Id. ¶ 47.)
- Regulate ENDS product design and information to, among other objectives, ban solutions that have fruit, candy-like, and alcoholic drink flavors until empirical evidence shows that they are not attractive to minors. (Id. ¶ 48.)
- Make ENDS health warnings commensurate with proven health risks, by considering the use of such risk warnings as potential nicotine addiction, potential respiratory irritation, and potential adverse effect on pregnancy. (Id. ¶ 49.)
- Use or strengthen existing tobacco surveillance and monitoring systems to evaluate developments in ENDS and nicotine use by gender and age. (Id. ¶ 50.)
Regulation of e-cigarettes is not new. On May 19, 2014, a new Tobacco Products Directive entered into force in the European Union that for the first time regulates such products, requiring compliance with packaging and advertising rules and notification of Member State governments before introducing new types of e-cigarette products. (Gillan, supra; European Commission, Revision of the Tobacco Products Directive, EUROPA (last visited Oct. 9, 2014); Theresa Papademetriou, European Union: Adoption of the Revised Tobacco Directive, GLOBAL LEGAL MONITOR (Apr. 24, 2014).)
According to news reports, scientists are divided about the risks and possible benefits of e-cigarettes, with one group having cautioned the WHO against classifying them as tobacco products because that might waste an opportunity to cut smoking-related disease and deaths, while other experts urged the WHO to hold fast to its agenda for strict regulation. (Stephanie Nebehay & Ben Hirschler, WHO Urges Stiff Regulatory Curbs on E-Cigarettes, REUTERS (Aug. 26, 2014).)