- Age restrictions
- Public place usage
- Tax policy
- Packaging/warning labels
- Other regulatory measures
Even when the U.S. Food and Drug Administration’s deeming regulations on e-cigarettes are implemented, the sale and use of these products in the United States will largely be regulated on the state, municipal, or quasi-governmental levels – meaning that there are potentially thousands of regulatory bodies.
The maps in this feature illustrate the regulatory environment at the state level, where there is potential for legislation to have significant effect on the industry.
They cover four regulatory categories:
- Sales to minors.
- Vaping in public places.
- Taxation of e-cigs.
- Labelling and packaging.
Each state is colour-coded to indicate the level of restrictions it has imposed in each category:
- Red = legislation already in place.
- Yellow = legislation expected in the near future.
- Green = no legislation expected soon.
This picture could change quickly. As of 31st March, law-makers in 32 states were considering e-cig bills. And in the 2015 legislative session, three e-cig laws have already passed in two states – one in Wyoming and two in Utah.
Most state legislatures meet only part-time for “regular session”, which last several months (a complete session schedule for U.S. legislatures is available here). Any new legislation will have to be progressed during these periods.
In states with full-time legislatures, the session typically lasts year-round, with breaks for work in districts.
In both types of state, session usually convenes in January; as of the date of publication, only the Louisiana legislature has not yet convened for session.
Because most legislatures are currently in session, we expect an influx of proposed e-cig legislation over the next several months.
There is no federal law to restrict the sale of e-cigs to minors, but the 41 red states in our map have enacted laws to prohibit the sales of e-cigs to minors; the majority of them did so in 2013-2014.
In 37 of these states, minors are statutorily defined as persons under the age of 18; only in Alabama, Alaska, New Jersey, and Utah are they defined as people under 19.
No state is labelled green, because we expect that the remaining yellow states will follow suit by passing laws to prevent youth access to e-cigs during the next couple of years.
For example, Massachusetts, Montana, Oregon, New Mexico, North Dakota, and Texas have all introduced bills to ban the sales of e-cigs to minors, and Nevada senator Patricia Farley is expected to introduce legislation to ban e-cig sales to minors in the next several weeks.
In some states, the picture is unclear: there is debate as to whether minors may legally purchase e-cigs. For example, the state government of Maine insists that e-cigs are “tobacco products” and therefore may not be sold to minors. But the state does not explicitly prohibit e-cig sales to minors. While we have therefore included Maine in the “red” states, we will continue to monitor whether specific legislation is introduced.
Even states with explicit age restriction bans are considering bills to strengthen these prohibitions. For example, Maryland House Bill 489 would prohibit the sale to minors of components and refills.
It is also likely that youth access provisions will be attached to provisions restricting adult access. In 2014, bills to ban sales to minors were defeated in New Mexico, Massachusetts, and Oregon because lobbyists successfully persuaded legislators to hold out for future bills including other measures such as taxes, usage bans, and classification of e-cigs as tobacco products.
Public place usage
There is no federal law on vaping in public places, nor is there a uniform approach to the issue by the states; it is primarily regulated at a local or quasi-governmental level. Notably, in a majority of states, many local governments have included e-cigs in city and municipal smoke-free policies. Major cities with restrictions on public vaping include Boston, Chicago, Los Angeles, New York and Philadelphia, and many smaller ones have followed suit.
However, while thousands of local governments have regulated the public use of e-cigs, only three states – New Jersey, North Dakota, and Utah, which we mark in red – prohibit indoor e-cig use in private workplaces, restaurants, and bars, and the Centers for Disease Control and Prevention (CDC) has reported that no state has enacted legislation to prohibit e-cig use indoors since 2012.
Nevertheless, several other states, indicated in yellow, have introduced bills to include e-cigs in their comprehensive smoke-free laws, which could significantly restrict the use of e-cigs.
Texas is the only “green” state; it is not likely to prohibit indoor e-cig use because it does not currently restrict indoor cigarette use.
Again, there is no federal taxation of e-cigs, which are typically only subject to state sales taxes. Currently, only two “red” states tax e-cigarettes.
Since 2009, Minnesota has considered e-cigs to be “Other Tobacco Products,” which means that they are taxed at a percentage of the wholesale price. This wholesale price includes the device’s electronics, which results in an e-cig tax that is generally higher than the tax on conventional cigarettes.
In 2014, North Carolina introduced an alternative model which levies a tax of 5 cents per millilitre of nicotine e-liquid. This model does not penalise consumers who use non-nicotine products (as the Minnesota model does) and it recognises the fundamental difference between tobacco products and e-cigs. The North Carolina model has not yet taken effect.
The yellow states on our map are those that have proposed an e-cig tax during the 2015 legislative session. Many legislators are considering e-cig taxes to generate additional revenue.
California is a red state on our map because it has long-standing legislation in place which could require e-cig packages to include warning labels.
Under California Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986), all products that contain certain chemicals must include a warning label that notifies consumers of associated health threats. At least ten chemicals identified in e-cig aerosol are on California’s Proposition 65 list of carcinogens and reproductive toxins, including acetaldehyde, benzene, cadmium, formaldehyde, isoprene, lead, nickel, nicotine, N-nitrosonornicotine, and toluene. A lobbying organisation, the Center for Environmental Health (CEH), has filed suit against 19 California e-cig companies for failing to adhere to Proposition 65.
Utah also became a red state in March 2015 by passing House Bill 415, which authorised the Department of Health to determine product quality, nicotine content, packaging, and labelling standards for vapour products. Wyoming likewise became a red state by passing House Bill 174 to require e-liquids to be sold in child-resistant packaging.
The industry would probably prefer e-cig packaging regulations to be imposed at a federal level, because a patchwork of state laws would be complicated to comply with, and indeed a number of proposals are being contemplated in Congress.
However, many more states are also considering their own legislation – particularly focusing on child-resistant packaging requirements. For example:
- Arizona House Bill 2648 would make it a petty crime to sell a vapour product without a warning label describing health dangers to minors, or sell a vapour product with a label or packaging that “attempts to confuse” the product with a toy or candy.
- Maine House Bill 290 would require child-resistant packaging for products containing liquid nicotine solution.
- Virginia House Bill 2036 would require all e-liquid nicotine solution to be sold in child-resistant packaging, and would also mandate warning labels.
Other regulatory measures
State governments are beginning to expand the scope of their e-cig regulatory efforts. The sale and use of e-cigarettes could be further restricted by additional laws addressing retailer licensing, Internet sales, refills, marketing and advertising, flavours, vaping near children, and even the classification of nicotine as a schedule III controlled substance.
- Utah has passed House Bill 415, which requires a person to obtain a licence to sell or distribute e-cigs and provides criminal penalties for unlicensed sales or distribution.
- Two Virginia bills, Senate Bill 1004 and House Bill 1310, would require e-cigs to be sold by state-licensed tobacco distributors.
- Texas has introduced Senate Bill 97 to restrict Internet e-cig sales; new regulations would include requiring every online order by a Texas resident to undergo an identification check service costing $6 per purchase.
- Washington is seeking to prohibit all e-cig sales over the Internet to private citizens.
- New York Assembly Bill 635 would ban the sale e-liquid refill bottles.
- Virginia Senate Bill 360 would ban the sale of any “open system” refillable e-liquids.
Marketing and advertising
- Arizona House Bill 2648 would make it a petty crime to market vapour products to minors.
- Texas has introduced bills to limit e-cig product advertising within 1000 feet of schools, and require advertisers to pay 10% of the cost of any advertisement to the state as a fee.
- Connecticut and Oregon have introduced bills to ban all e-cig flavours.
- Vermont seeks to ban most flavoured e-liquids, allowing only menthol.
- Virginia Senate Bill 360 would ban e-liquids with “characterizing flavours”.
- Oregon and New Mexico have introduced bills to prohibit vaping in cars with children.
- Oregon House Bill 2558 seeks to classify nicotine as a schedule III controlled substance.
Yet, curiously, other states are reacting in a completely opposite manner by introducing laws that could benefit e-cigs. For instance, a law in Missouri seeks to forbid the creation of a tax on e-cigs, while many states are attempting to prevent localities from imposing more restrictive measures on e-cigs than those provided by state law.
– Carly Souther ECigIntelligence staff
Carly Souther, legal and regulatory analyst, ECigIntelligence. Carly is a graduate of the Florida State University College of Law and also has a BA in political science from Mercer University. She was admitted to the Florida Bar in 2013, and was assistant general counsel at Florida’s Agency for Health Care Administration (AHCA). She is currently studying part-time for a postgraduate master of laws (LLM) degree.