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Prevalence

E-cigarettes first entered the US market in 2007 and have since surged in popularity, growing to a more than $3.5 billion dollar industry as of 2014. The CDC reports that use of e-cigarettes among youth doubled between 2011 - 2012, and tripled among youth from 2013 to 2014. In 2015, 24.1% of high school youth reported current use of e-cigarettes. According to a 2014 CDC survey, 12.6% of U.S. adults had ever tried an e-cigarette, and 3.7% were current users. 
For general information on e-cigarette and nicotine-delivery device patterns of use, health effects, marketing, and policy implications, review: The FDA defines e-cigarettes as “battery-operated products designed to deliver nicotine, flavor and other chemicals. They turn nicotine, which is highly addictive, and other chemicals into a vapor that is inhaled by the user.” However, the industry is rapidly evolving, and many variations and categories of these products now exist, including vaporizers, disposable e-cigarettes, heat-not-burn cigarettes, and non-nicotine e-cigarettes. To add to the confusion, e-cigarettes carry a number of different names, such as “vape products,” “vaping products,” “electronic smoking products,” “vaporizers,” and “electronic nicotine delivery systems.” Categorizing all the products of interest under just one name is difficult, as not all “electronic nicotine devices” deliver nicotine, not all “e-cigarettes” resemble a cigarette, and “vape products” is a misnomer to those who believe that the term “vape” implies minimal associated health risks to consumers. For the purposes of this evidence summary, we will loosely refer to the entire category of devices as e-cigarettes.

Definitions

Depending on which definitions are used in a state or local policy, there may be different legal considerations and implications. The FDA extended the agency’s authority to cover all tobacco products including e-cigarettes in their “deeming” rule, released on May 5, 2016. Many states and communities have also begun to address e-cigarette use by restricting sales to minors, regulating pricing and promotion of e-cigarettes, and limiting the advertising and availability of these products. How state and local laws define e-cigarettes, and whether these products are categorized separately from “other tobacco products,” or included in the definition of “smoking” will determine whether existing regulations apply.[1]  Review the Public Health Law Center’s review of current e-cigarette regulations in all 50 states for more details on varying state definitions and regulations.

E-Cigarette Devices

Classifying e-cigarettes can be tricky, as the differences between the various types are often distinguished by the internal structure of the device, and not by the external appearance. Conceptually, there are two types of e-cigarette devices:e-cigs
  1. Open systems are rechargeable devices that allow the user to add an e-liquid solution or loose-leaves into the system. They also allow the user to adjust the settings to personalize the devices. Open systems are becoming increasingly popular and individualized. Mods/RBAs/RDAs/RTAs are larger open-system devices, usually made of metal, which can be modified (hence the name “mod”) or rebuilt to fit customer preferences for battery size, voltage, temperature control, coils, etc. Herbal/dry chamber vaporizers are open-systems designed to heat loose-leaf plant material without burning it. These are marketed to create a “cleaner” high than traditional forms of smoking, and are often used for marijuana. They are sold as a pen style, portable style, or desktop style.
  2. Closed systems are those that cannot be taken apart, have the tank refilled, or be altered by the user. They can be disposable or rechargeable. Some allow the user to replace cartridges. Cig-a-likes and pre-filled vape pens or vape sticks fall into this category. Cig-a-likes, the first generation of e-cigarette developed, were designed with the same size and shape of a conventional cigarette to maintain the look and feel of smoking a cigarette. Many have a tip that lights up when activated to mimic smoking as closely as possible. For more information on the different categories of e-cigarette devices and images of each, please visit our vSTARS Training Manual.

E-liquid solutions and flavors

Similar to the difficulty inherent in naming e-cigarettes, the liquid solutions used inside of the e-cigarettes also carry a myriad of undefined labels, including “e-juice”, “e-liquids,” and “e-liquid solutions”. These liquids are used in all types of e-cigarette devices except for the open-system, dry-chamber, herbal vaporizers. E-liquid solutions may or may not contain nicotine, which is then added to a base of propylene glycol or vegetable glycerin. They also may or may not contain flavors, menthol, caffeine, THC, CBD or other psychoactive substances dissolved into a liquid base.
The endless variety of flavors available for e-liquid solutions pose a particular problem for youth initiation. A study in 2014 found a total of 7,765 flavors and 466 brands, and the market has only grown since then. Common flavors with a strong youth appeal include fruit flavors (e.g. cherry, blueberry, melon) and candy flavors (e.g. cotton candy, bubblegum, chocolate, and vanilla). An increasing number of e-liquid solutions have names that do not reflect the precise flavoring, such as “Lizard Guts” or “Unicorn Puke”. Similarly, most major e-liquid manufacturers create menthol e-liquid solutions, which are often labeled as mint, wintergreen, ice, or frost. Also common are e-liquid solutions that share the same flavor profiles as alcoholic beverages, such as “sex on the beach” or “mojito”.
E-liquid solutions that do not contain any nicotine are often marketed as a “healthy” alternative to smoking or vaping nicotine, particularly if these e-liquid solutions contain vitamins, such as the 0-nicotine VitaVape products. New lines of e-liquids are emerging that are labelled as TFN (Tobacco-Free Nicotine). These e-liquids contain nicotine allegedly not derived from tobacco plants. However, comprehensive policy language intentionally defines products broadly, such that restrictions on e-cigarettes can encompass both 0-nicotine solutions and nicotine derived from sources other than tobacco.

Vape shop culture: a constant evolution

A vape shop sells products such as vape pens, tanks, mods, e-juices, e-hookahs, advanced systems, and their accompanying components along with e-liquid solutions or cartridges. These stores may or may not have a vaping lounge or vaping bar inside as well. Many vape shops operate on non-traditional retail hours, opening closer to noon and closing later at night. Head shops have also started carrying advanced, open-system e-cigarettes in addition to other smoking-related paraphernalia, usually related to recreational drug use (e.g., bongs, glassware, incense).
As vape shops strive to create a unique retail environment, they have promoted certain messages to customers in an attempt to differentiate their products from combustible cigarettes and other tobacco products. Although research on vape shops is still limited, a study by Sussman et al. reflects the anecdotal evidence that most vape shop owners (76%) believe that their products are a safer alternative to cigarettes. This belief is often conveyed via posters inside vape shops that convey harm reduction messages about vaping, along with staff’s personal testimonials. Many vape shops also purport the theory that vaping saves money when compared with smoking conventional cigarettes. To further the perceived economic benefits to vaping, stores will offer individual discounts to active duty or former military members or college students.
Similarly, many vape store owners or staff members claim that vaping is an effective method of smoking cessation, and they may use signs or images to depict this theory inside their store, along with sharing personal testimonials of how e-cigarettes helped them to stop smoking. Conflicting evidence exists in the literature on whether e-cigs help or undermine quit attempts. They are not an FDA-approved cessation device/quit aid; however, some researchers argue that e-cigarettes are less dangerous than regular cigarettes, and they have the potential to assist with smoking cessation for adult smokers. Accordingly, the United Kingdom’s Royal College of Physicians has publicly stated that they have reviewed the evidence and believe the benefits of e-cigarettes outweigh the harms. Research is still emerging on whether e-cigarettes can be an effective cessation device among smokers who desire to quit smoking. A Lancet systematic review looking at dual use concluded, “association of e-cigarette use with quitting did not significantly differ among studies of all smokers using e-cigarettes (irrespective of interest in quitting cigarettes) compared with studies of only smokers interested in cigarette cessation.” For more information, review the following:

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Many vape shops take great lengths to differentiate themselves from traditional tobacco retailers, and as such, a different type of store assessment is needed to describe the store environment and marketing practices used. To this end, SCTC researchers, state, and local practitioners collaborated to develop the Standardized Tobacco Assessment for Retail Settings: Vape Shops (vSTARS) surveillance tool, designed for practitioners to inform state and local tobacco control policies for the point of sale. The assessment items (e.g., types of products sold, flavors, health messaging) were selected exclusively for their policy relevance. No items function as compliance checks for federal regulations. This user-friendly tool can be filled out by professionally-trained data collectors, as well as self-trained adults.
Learn more about tracking vape shops, how to use the tool, and download the materials here.

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Marketing

The tobacco industry heavily advertises e-cigarettes, relying on similar advertising strategies that have proven effective with traditional cigarettes, including marketing to youth. The Campaign for Tobacco Free Kids outlines some of these tactics in 7 Ways E-Cigarette Companies are Copying Big Tobacco’s Playbook. The tobacco industry has begun to channel vast sums of money into the marketing of e-cigarettes. In fact, a 2013 study found that of noncombustible tobacco products, advertisements for e-cigarettes are the most widely circulated.[8] Across the top 10 major brands, e-cigarette advertising expenditures grew by 52% between 2013 and 2014, rising to a combined total of $115.3 million in 2014. The brand MarkTen alone spent $54 million on advertising in 2014. A pilot conducted in Central Harlem, NYC found that among the 156 stores licensed to sell tobacco, 26% had e-cigarette advertising on the exterior of the store and 45% of these stores sold e-cigarettes.[10] Recent evidence has shown e-cigarette advertisements with visual depictions increase the urge to smoke a traditional cigarette among daily smokers, and they reduce intentions to remain abstinent among former smokers.[13]

Health & Safety Issues

Although e-cigarette proponents argue that vaping is safer than smoking combustible cigarettes, there are still demonstrated health risks to vaping due to chronic nicotine use, inhaled particulate matter, and toxic chemicals of certain e-liquid solutions. While it has been established that nicotine has  adverse effects on the developing brain, other issues, like whether or not e-cigarettes are an effective method of harm reduction, are still debated. Research is still emerging in the area of e-cigarettes and health, but some of the risks are outlined below.
One of the most obvious health issues with any nicotine product, including e-cigarettes, is the risk of developing addiction. As advanced system e-cigarette devices continue to allow for enhanced specificity on features that control nicotine flux (amount of nicotine emitted per puff second), they may not only be helpful in predicting e-cigarette use patterns, but also allow an opportunity to improve their effectiveness as a potential cessation aid (Shihadeh & Eissenberg, 2015).
In addition to addiction, chronic nicotine use has been linked to cardiovascular, respiratory, and gastrointestinal disorders. Also of note, certain flavors of e-liquid solutions containing diacetyl can cause a disease, bronchiolitis obliterans, commonly referred to as “popcorn lung”. One Harvard study showed that 75% of all e-cigarettes had diacetyl within the e-liquid solutions.
Similarly, cinnamon flavored e-liquids, particularly those containing cinnamaldehdye, are cytotoxic, despite being safe for oral consumption. Other potential pulmonary problems are outlined in the articles below: E-cigarette devices have been linked to explosions from lithium-ion batteries, small fires, and overheating. Examples of these safety issues are listed below:
The FDA is holding a public workshop on Battery Safety Concerns in Electronic Nicotine Delivery Systems April 19-20th, 2017 in Silver Spring, MD. They have also issued a request for comments
The report, "Gateway to Addiction? A Survey of Popular Electronic Cigarette Manufacturers and Targeted Marketing to Youth," found major e-cigarette companies take part in marketing strategies that target youth through promotional activities like sponsorships or free samples at youth-oriented events and TV ads. However, a study by the Truth Initiative found youth awareness of e-cigarette advertisements to be highest at retail locations such as convenience stores, gas stations, and supermarkets. Additionally, a randomized controlled trial found that young adults who had never tried an e-cigarette before but who were exposed to e-cigarette advertisements had greater curiosity about, and were twice as likely to have tried e-cigarettes six months later than young adults who were not exposed to e-cigarette advertisements.[11] A study of Scottish youth found that those who recalled seeing e-cigarettes in retail settings were nearly twice as likely to have tried an e-cigarette, and also more likely to report intentions to try them within the next six months.[12] Recent evidence has also shown e-cigarette advertisements with visual depictions to increase the urge to smoke a traditional cigarette among daily smokers and reduce intentions to remain abstinent among former smokers.[13
The Federal Cigarette Labeling and Advertising Act prohibits states and communities from regulating the marketing and sale of cigarettes, but this law does not apply to other non-cigarette tobacco products like e-cigarettes. While this may be an option, advertising restrictions may face legal challenges related to commercial speech. Consult legal counsel and review the following resources from TCLC for more information: photo 2

E-Cigarettes & FDA Deeming Regulations

The FDA has passed a number of regulations in 2016 that impact e-cigarette manufacturing, marketing, and the prohibition of free sampling of e-liquid solutions inside stores. Included in these are the following regulations, which will be enforced within the next 3 years (courtesy of TCLC’s “Clearing the Clouds” webinar):
  • Regulation of adulterated products
  • Prohibition on false or misleading advertising
  • Regulation of modified risk claims
  • Registration of manufacturers and disclosure of product lists
  • Disclosure of ingredients, substances, compounds, and additives
  • Disclosure of health-related documents
  • Prohibition on the use of “light,” “mild,” “low,” or similar descriptors
  • Premarket review
  • Disclosure of harmful and potentially harmful constituents
Prior to FDA “deeming”, a number of vape shops created their own e-liquid solutions onsite by mixing propylene glycol and vegetable glycerin with nicotine, flavors, or colors. Other shops allowed store staff to mix existing e-liquids to create new flavors onsite (e.g., mixing a chocolate flavored e-liquid with a strawberry e-liquid to create a new chocolate-strawberry flavor). Since the FDA regulations were signed, if a vape shop “mixes or prepares e-liquids or creates or modifies aerosolizing apparatus for direct sale to consumers for use in ENDS, the establishment fits within the definition of ‘tobacco product manufacturer’.” These tobacco product manufacturers are subject to more stringent regulations than vape shops that only sell pre-fabricated e-liquid solutions.
As of May 2016, FDA regulations now require all newly-deemed products to have health warnings that state, “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” For products that do not contain nicotine at detectable levels, the warning is revised to read: “This product is made from tobacco.” E-liquid solutions that do not contain tobacco or nicotine, or are not derived from tobacco or nicotine, do not meet the definition of a “covered tobacco product” under the new FDA Deeming regulations, and they will not be required to carry an addiction warning. Some states also require health warnings or ingredient lists on e-liquid packaging, an approach which a 2014 public opinion poll showed two-thirds of adults support.[5] For more information, review the following resource: TCLC’s “Policy Approaches to Prevent Liquid Nicotine Poisonings

Policy Options

Overview:

Broadly written policies concerning e-cigarettes should not be exempt from regulations around advertising, marketing, and warning labeling, nor preempt strong regulations at the state or local levels.[1] For more information, review the following:

Youth Access

Effective August 8, 2016, the FDA’s final deeming rule prohibits the sale of any tobacco product, including e-cigarettes, to anyone under the age of 18. It also requires the use of photo identification to verify age. As states have started to raise the minimum age to purchase tobacco products, some states have opted to include e-cigarettes in these restrictions. In March 2010, New Jersey became the first state to ban the sale of e-cigarettes to minors. As of December 2015, 48 states and many communities had passed similar legislation. In March 2014, the National Association of Convenience Stores (NACS) issued a position statement encouraging retailers to apply state, local, and federal tobacco age verification standards to e-cigarettes.
Meanwhile, e-cigarette use among middle and high school students has surpassed use of any other tobacco product. [3] A recent study of high school age youth in Los Angeles, CA found that youth who had previously tried e-cigarettes were more likely to later try other types of tobacco products including cigarettes, cigars, or hookah than youth who had not tried e-cigarettes.[4] A 2014 public opinion poll found that over 70% of adults support policies prohibiting the sale and marketing of e-cigarettes to youth.[5] Similar to strategies used to curtail youth access to conventional tobacco products, restrictions could include limiting self-service access of e-cigarettes, or prohibiting the placement of e-cigarettes near candy/toys. Currently, federal legislation banning cigarette self-service displays do not apply to e-cigarettes. As of 2015, 38% of states had banned self-service displays for e-cigarettes, and some cities and counties have as well. Review ChangeLab Solutions’ model self-service display ordinance for more information.

Flavorsflavors

Another option for restricting the availability of e-cigarettes is to place restrictions on flavored products, which have a strong youth appeal. The 2009 Tobacco Control Act banned flavored cigarettes, but other tobacco products, including e-cigarettes, can still be flavored. Certain localities, like Chicago, have restricted all flavored tobacco/liquid nicotine products, including e-liquid solutions, within 500 feet of schools. Read more about how Chicago defined tobacco products here. Minneapolis instituted a policy restricting flavored tobacco products to stores that are only open to adults, like tobacco shops. You can review ChangeLab Solutions’ model ordinance and the following resources from the Tobacco Control Legal Consortium for more information on flavor bans:

Packaging

E-cigarettes have introduced a new health risk to children: the accidental ingestion of e-cigarette liquids. Between 2011 and 2014, poisoning cases related to e-cigarettes increased tenfold, with 3,638 e-cigarette-related calls to poison control centers in 2014. In response, the federal Child Nicotine Poisoning Prevention Act, signed into law in January 2016, requires all liquid nicotine containers used for e-cigarettes and other vaping devices to be sold in child-resistant packaging.

Licensing

Many states and localities have begun incorporating vape shops and e-cigarette retailers into their tobacco retailer licensing ordinances. As of September 30, 2016, 14 states passed legislation requiring licensing for over-the-counter sales of e-cigarettes. Arkansas requires a permit to sell vapor products and distributors must purchase alternative nicotine products from licensed Arkansas retailers, wholesalers, and manufacturers. Maine’s attorney general has interpreted the definition of tobacco products to include e-cigarettes, but it remains unclear whether this is the protocol followed in the state.
One option that some localities have pursued is to temporarily prohibit vape shops from starting a business in their city limits (e.g., institute a 90 day moratorium) until further research is presented to policymakers for them to develop a policy. For example, Hayward, CA and Union City, CA used a temporary moratorium  to consider instituting a comprehensive regulation of tobacco products and electronic smoking devices. As a result, new vapor/e-cigarette bars and lounges are prohibited from opening within city limits.
Licensing can also be used as a tool to reduce retailer density. A 2014 study in New Jersey found that rates of both ever and past-month e-cigarette use were higher among students in schools located in an area with greater e-cigarette retail density.[14]

Story from the Field: Licensing E-Cigarette Retailers and Vape Shops 

In April 2016, the Washington state legislature adopted rules to create a statewide licensing system for businesses that sell and distribute “vapor products,” including liquid nicotine.  The state estimates that approximately 6,000 retailers will be affected by the new licensing rules, along with roughly 150 “vapor products” distributors. The rules, which are expected to take effect in fall 2016, require retailers to obtain a separate license to sell “vapor products” online. In addition, many local communities have adopted their own licensing and permit requirements for e-cigarette retailers and vape shops. For example, San Marcos, California, recently passed an ordinance requiring any shop that sells tobacco products, including e-cigarettes and related devices, to purchase a city-issued “tobacco retail license.”  The city partnered with the San Marcos Prevention Coalition and the Vista Community Clinic, which conducted surveys of local e-cigarette retailers and vape shops and determined that a number of businesses were selling these products to minors in violation of state law.  San Marcos plans to use the tobacco license fees (roughly $190 per establishment) to ensure that businesses are complying with tobacco control regulations, including restrictions on selling to underage users. Read more. 

Restrict Advertising, Particularly Towards Youth

Exposure to ads triggers cravings for traditional cigarettes among current smokers and reduced intentions to remain abstinent among former smokers (Does Vaping in E-Cigarette Advertisements Affect Tobacco Smoking Urge, Intentions, and Perceptions in Daily, Intermittent, and Former Smokers?)
The Federal Cigarette Labeling and Advertising Act prohibits states and communities from regulating the marketing and sale of cigarettes, but this law does not apply to other non-cigarette tobacco products like e-cigarettes. While this may be an option, advertising restrictions may face legal challenges related to commercial speech. Consult legal counsel and review the following resources from TCLC for more information: The report, Gateway to Addiction? A Survey of Popular Electronic Cigarette Manufacturers and Targeted Marketing to Youth,” found major e-cigarette companies take part in marketing strategies that target youth through promotional activities like sponsorships or free samples at youth-oriented events and TV ads. However, a study by the Truth Initiative found youth awareness of e-cigarette advertisements to be highest at retail locations such as convenience stores, gas stations, and supermarkets. A randomized, controlled trial found that young adults (who had never tried an e-cigarette) exposed to e-cigarette advertisements had greater curiosity about, and were twice as likely to have tried e-cigarettes six months later, when compared with young adults who were not exposed to e-cigarette advertisements.[11] Similarly, a study of Scottish youth found that those who recalled seeing e-cigarettes in retail settings were nearly twice as likely to have tried an e-cigarette, and also more likely to report intentions to try them within the next six month.[12 A 2014 study in New Jersey found higher rates of e-cigarette use among youth who attend schools located in areas with higher amounts of advertising for e-cigarettes within a half-mile compared to those in schools with less advertising nearby. [14

Taxation

E-cigarettes are not taxed as tobacco products at the Federal level, which makes the disposable and less advanced e-cigarettes cheaper than conventional cigarettes. However, many states have taken initiative to create policies at the state level – 22 states proposed e-cigarette taxes in 2015. However, only six states (Kansas, Louisiana, Minnesota, North Carolina, Pennsylvania, and West Virginia) have passed a state level tax as of February 2016. At the forefront of the issue, several questions arise on whether the tax should apply to e-liquid solutions versus devices, disposable versus rechargeable devices, retail versus the wholesale level, state versus local level, or ad valorem versus nicotine concentration. Minnesota and Pennsylvania tax e-cigarettes on a percentage of the wholesale price, while North Carolina, Kansas, Louisiana, and West Virginia tax per milliliter of nicotine liquid. Similarly, Chicago taxes by unit and volume: $0.80 per product unit, plus an additional $0.55 per mL liquid. Still others (MN, DC, and some localities in AK) opt to tax as a percent of the wholesale price in order to apply across a wide variety of products and sizes. To date, no states have implemented a differential taxation strategy like this. Review TCLC’s resources on tobacco taxation for more information:

Price Promotions

The tobacco industry also uses prices, promotions, and coupons to make e-cigarettes cheaper to the consumer. States and communities may consider restricting or prohibiting coupon redemption and other price promotions such as buy-one-get-one-free offers. Like other tobacco products, e-cigarette sales are responsive to price changes. When prices of both disposable and reusable e-cigarettes increase, sales decrease.[7] Providence, RI enacted an ordinance banning coupon redemption and multipack offers for tobacco products. While the tobacco industry challenged the ordinance on First Amendment and preemption grounds, the ordinance was upheld by a Federal district court. Review the following resources from TCLC to learn more about restricting price promotions. While e-cigarettes are not specified in these resources, similar strategies may be used. Prohibiting Tobacco Product Coupon Redemption: Sample Language