Vaping is a valid means for harm reduction and eventual cessation. This is a truthful claim backed by governments and academic researchers from all over the world. Sadly, this claim seems to elude the U.S. government.
Declaring a public health epidemic among the country’s youth, FDA Commissioner Scott Gottlieb has fallen to a successful hysteria campaign, propped up by anti-smoking activists, by threatening market-damaging regulation.
Now, an industry fears for its life. “It’s possible the e-cigarette category all but disappears” in 2019, financial analyst Stefanie Miller of Height Capital Markets wrote last year. Miller did author an analysis that was quite critical of the industry, but it bears some truth leaving vaping advocates wondering for their futures.
Juul Labs, the “Walmart of vaping,” has turned to self-regulation initiatives and powerful lobbying representation through Altria via a multibillion-dollar investment, for example. However, the remainder of the industry — a segment that includes thousands of early phase startups and small businesses — is looking down the barrel of a regulatory shotgun backed by the full force of the so-called “pro-business” Trump administration.
But a lot remains to be seen when it comes to the potential for further regulations. Already, Gottlieb intends to issue rules that curtail e-commerce sales, levy retail restrictions and control marketing of vape products. All of this is a culmination of a policy built around reducing youth vaping after the federal government released numbers suggesting a remarkable rise in underage use.
The federal data, however, is profoundly flawed because it lacks tabulation on everyday vapor use, among other underreported metrics. Citing this data and one-sided scientific analysis as Gottlieb did, Surgeon General Jerome Adams has additionally called on the states and localities to levy price floors, taxes and bans on flavors under the same “think of the children” mantra. There are several dozen state legislatures considering taxes on e-cigarettes, with the majority of these bodies returning for new sessions.
Nevertheless, we need to analyze the global framework of e-cigarette regulation across three separate countries. Sticking to the principles of comparative political theory, these model countries include the United Kingdom, Australia and the United States.
The vaping regulatory framework being formulated and simultaneously expanded in the United States will become exponentially worse. I believe the U.S. regulatory system could emulate the current Australian system in a matter of years.
“Australia has a much more restrictive regulatory environment for vaping than the U.S.,” says Colin Mendelsohn, chairman of the Australian Tobacco Harm Reduction Association, in an email. “It is illegal to possess liquid nicotine without a medical prescription with potential fines up to AUD $45,000 and two years jail. Because of the current government attitude and misinformation about vaping, most doctors will not write scripts, so the great majority of vapers are committing an offense.”
Mendelsohn ultimately characterized the Australian system as the extreme, short of outright banning recreational vaping. For retailers and manufacturers, the restrictions are evolved iterations of current U.S. policy trends. Advertising vaping products in Australia is illegal. The Therapeutic Goods Administration (the Aussie equivalent of the FDA) regulates e-cigarettes as a medical “therapy” over being a “sin” consumer good. And local governments have banned in-store tasting and outlawed e-commerce sales. In comparison, the U.S. government is considering further marketing and sales regulations at all levels of governance.
“The U.S. and Australia are moving in (the) opposite direction to the world trend. Vaping is expanding, the evidence is building,” Mendelsohn added. He further argues that the United Kingdom is the “leading light” for tobacco harm reduction and vaping. I believe Mendelsohn’s observation, to an extent.
The U.K. has a very particular place in the world of vaping and harm reduction policy. Parliament has officially endorsed vaping as a valid means of harm reduction while the government’s own public health researchers conclude that vaping is far safer than combustible cigarettes. Regulations, though not to the point of criminalization, are strict for American standards.
“The U.K. has some of the strictest e-cigarette regulations in the world,” Martin Dockrell, the tobacco control lead for Public Health England, said in an email. “Unlike the U.S., we have a ban on print and broadcast advertising and tight product regulation including a maximum nicotine level.”
Other regulations in U.K. also place a heavy focus on individual discretion. The government hasn’t yet codified a vaping ban in public spaces. Instead, like a lot of “legal sin” discretion policies in the United States, the property owner has the final word on where individuals can and cannot vape. This is a crucial point.
Between the United States, Australia and the United Kingdom, policies are unique. There are three commonalities between the systems, though. First, the regulatory framework growing in the United States is still in its infancy; however, this country’s code is very similar to the “seeds” of the U.K.’s framework, and eventually the more extreme Australian framework. Second, each wishes to or currently does regulate nicotine content volume, flavors, manufacturing and other aspects of retail. Though the systems are varied in the degree of enforcement and encroachment, the basis of similar approaches is present. Third, all three systems seem to favor taxation.
The significant contrast, though, comes from the societal, academic and political forces influencing regulation. Unlike a message of fear and hysteria built up around youth use and the “gateway” phenomenon in the United States and Australia, the U.K. has a different approach.
“We monitor e-cigarette use extremely carefully and are alert to the risks, but to date, evidence shows that vaping is not leading to an increase in the number of young people smoking,” U.K.’s Dockrell wrote.
Though he cites data among the United Kingdom’s youth, the claim would hold true in the United States if evidence wasn’t flawed, conflated and hijacked for fear campaigns. Dockrell’s claim reveals that regulation in the U.K. is built around a more level-head, prudent message. This is further evidenced by the now-viral cotton ball Public Health England study that reaffirmed that vaping is 95 percent safer than combustible tobacco.
Now, consider our current state in the United States. The federal government will either evolve its regulatory trends to an Australia-style system of criminalization or, somehow, adopt a regulatory regime that is at least based on lightly disputed data, scientific inquiry and medical application. Nonetheless, the end result in the United States does need to be unique, pro-market and pro-harm reduction.
Most Americans believe in free markets and the evolution of an innovative industry. Two separate market reports project that the vaping industry will balloon to a hefty $43 billion net worth in the next five years. Given the current trends of regulation and hysteria, that goal could be reduced or entirely diminished.
Due to the aggressive growth of this industry, the U.S. government must weigh the real-world consequences from regulating so heavily.
I don’t dismiss the need to educate and reduce underage nicotine use. It’s imperative. But the current regulatory trend doesn’t properly balance the rights of the business, the smoker, nor the actual implications to public health if full bans are implemented.
Any regulatory framework needs to recognize vaping as a valid means of smoking cessation. Regulating and taxing an industry into oblivion is not a viable public policy. There needs to be balance in the law at all levels of American governance. We can’t go down the Australian road, in this regard.