Published in Pawtucket Times, May 3, 2013

Just weeks ago, health advocacy organizations found themselves in an awkward, uncomfortable situation at the Rhode Island General Assembly. Although they supported the stated intent of House and Senate bills (H 5876 and S 622) that blocked the sale of electronic cigarettes (or e-cigarettes) to minors, they were forced to oppose these legislative proposals because of troubling provisions they believe were embedded within these bills.

When introducing his Senate proposal, e-cigarettes, says Senate Majority Leader Dominick J. Ruggerio, are proof that not all technological advances are good things. This led the Senator, representing Providence and North Providence, to become the Senate’s lead sponsor. House Finance Committee Chair Helio Melo, whose legislative district covers East Providence, jumped in as prime sponsor in his chamber, because of his desire to get the debate started on this relatively new public health issue.

E-cigarettes contain nicotine, a highly addictive substance. According to the U.S. Federal Drug Administration, the safety and efficacy of e-cigarettes have not been fully studied, consumers of e-cigarette products currently have no way of knowing whether e-cigarettes are safe for their intended use, how much nicotine or other potentially harmful chemicals are being inhaled during use, or if there are any benefits associated with using these products.

Additionally, it is not known if e-cigarettes may lead young people to try other tobacco products, including conventional cigarettes, which are known to cause disease and lead to premature death.

The FDA warns that more research needs to be done on the health risks of inhaling liquid nicotine, and has announced its intent to assert regulatory authority over electronic cigarettes.

New Technology in Smoking

Although the first patent on e-cigarettes was filed in 1963, the smoking device became readily available in the United States by 2007. E-cigarettes are electronic nicotine delivery systems. Often shaped like cigarettes or cigars, they deliver nicotine to a user in the form of vapor. E-cigarettes ordinarily consist of battery-operated heating elements and replaceable cartridges that contain nicotine or other substances, and an atomizer that, when heated, converts the contents of the cartridge into a vapor that a user inhales. The nicotine in these products is derived from tobacco, but unlike cigarettes and cigars, there is no tobacco in e-cigarettes, and hence no smoke.

Ruggerio noted that his legislative proposal would prohibit the sale of e-cigarettes to minors, along with expanding the statutory definition of “tobacco products” to include “tobacco-derived products” and “vapor products.” “Vapor products,” as included in these bills, would refer to any non-combustible tobacco-derived product containing nicotine, such as an electronic cigarette, that employs a mechanical heating element, battery or electronic circuit, regardless of shape or size that can be used to heat a liquid nicotine solution contained in a vapor cartridge. The term would not include any product regulated by the U.S. Food and Drug Administration under the Food, Drug and Cosmetic Act.

“Those who say these products are designed for adults who want to quit smoking real tobacco products are ignoring the fact they are marketed to be appealing to youngsters, offered in flavors such as bubblegum and chocolate,” observed Ruggerio. “Kids may see these as fun things, but as adults, we should know better and take action to keep our children safe.”

Health Advocates Rally to Oppose E-cigarette Proposal

At a first read, Director Karina Holyoak Wood, of the Rhode Island Tobacco Control Network (RITCN), saw the e-cigarette legislation proposal as positive step toward keeping the new smoking technology out of the hands of minors. However, once Wood, whose anti-smoking network includes 55 groups (including the American Lung Association, American Cancer Society, American Heart Association and the Campaign for Tobacco Free Kids), looked over the bills she found it embedded with provisions that could potentially undermine future regulation of e-cigarettes and create regulatory loopholes.

Wood and colleagues discovered that the e-cigarette bill was being promoted by RJ Reynolds, a major tobacco company. She believed that while the legislative sponsors’ intent was to prohibit youth access to e-cigarettes, a laudable goal, she feared that RJ Reynolds might be utilizing the bill as “a Trojan horse to establish their own business agenda for this emerging and currently unregulated smoking device.”

Suspicions were confirmed, says Wood, when a lobbyist from R.J. Reynolds Tobacco company came to the Ocean State to support Ruggerio’s and Melo’s e-cigarette bills at the Senate and House Finance Committee hearings on April 9 and April 23, respectively. She also became aware that similar legislative proposals were popping up all over the country, with the Winston-Salem, North Carolina tobacco company lobbying for their passage.

Wood, and 17 health advocacy organizations gave the bills the thumbs down at both panel hearings, while the tobacco industry endorsed the measure wholeheartedly.

In her written statement, Dr. Patricia Nolan, former director for the RI Health Department, who now co-chairs the RITCN’s Policy Committee, warned the Senate Finance Committee members that the bill would define “a ‘new’ tobacco product and exempt it from some of the controls that currently apply to all tobacco products. She charged that it would define these products in ways that actually might undermine Rhode Island’s ability to effectively regulate and control them.

According to Nolan, the bill’s definition of tobacco products may not include all e-cigarette and vapor products, leading to confusion. The new products regulated by laws concerning indoor air pollution and worker safety, she charged. “The safety of e-cigarettes and vapor devices for users or for indoor air quality is not known,” she said.

With the State scrambling for tax revenue, S 622 and H 5876 are silent on the issue of taxation of the e-cigarette product. “Having the definition in the tax section of the law could facilitate either taxing or exempting these ‘new’ products,” she told the House panel.

Nolan also noted that the bills create obstacles to enforcing penalties against merchants which violate the Youth Access Law by eliminating the requirement for courts to maintain records of penalties and fines imposed for violations not requiring that the Division of Taxation be notified about the disposition of the violation.

Other opponents and critics included the RI Department of Health’s Tobacco Control Program, the City of Providence and East Providence Prevention Coalition, and several local retailers, including Barrington-based, Ecig Shed came and Cigotine, LLC, in Providence, who came to share their concerns, both owners threatening to leave the Ocean State if the measure was enacted. Melo’s e-cigarette bill would greatly reduce their sales by restricting online sales of nicotine-containing products by treating the smoking device the same as traditional tobacco products, noted the business owners..

Specifically, e-cigarette bills would require a retailer conducting an online sale to obtain a copy of the buyer’s driver’s license along with a statement from the buyer affirming that they are the person pictured. The purchased product must be sent through a service that checks the ID of the buyer at delivery. Retailers would be required to perform this check every time a consumer places an order.

Finally, e-cigarette retailers in Rhode Island would be required to obtain a tobacco license and only buy their e-cigarettes from licensed wholesalers or distributors.

At the hearing, Lobbyist Jack Hogan, of R.J. Reynolds’s Tobacco Company, noted that his company’s support of the General Assembly’s cigarette legislation, and proposals being considered by other state legislatures, was to keep tobacco, including e-cigarette products out of the hands of minors under age 18. In countering the concerns of the health advocates, “there is no hidden agenda [in supporting the e-cigarette legislation]. It is the right thing to do,” he said.

Voices Heard

With the effective mobilization of health advocacy organizations to oppose H 5678 at the April 23 House Finance Committee, Wood and some of her network partners and the Health Department would meet one week later with Melo to discuss their strong opposition to his e-cigarette bill. As a result, he offered to withdraw his bill for further study, effectively killing it. He invited the health advocates to work with him on a new bill, comprehensively defining e-cigarettes and vapor products and prohibiting their sale to minors, will be reintroduced next year, he says.

The saga of the e-cigarette legislative proposal is a good example that participating in the legislative process can go a long way especially for those who put the energy and effort into it. Sound testimony combined with bringing in your supporters to the table will most certainly get the attention of lawmakers. Yes, that’s Democracy in action.

Herb Weiss, LRI ’12, is a Pawtucket-based freelance writer who covers aging, health care and medical issues. He can be reached at hweissri@aol.com.