The WasteWatcher: The Staff Blog of Citizens Against Government Waste

The Marlboro Man and the Blue Light

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.


The vapor product known as electronic cigarettes, “e-cigs,” first appeared on the market in 2007.  Although the e-cig market is still smaller than traditional cigarettes, sales grew by 23 percent in 2014 and are expected to surpass the cigarette market within the next decade. 

As this product becomes more popular, the federal and state governments have begun to try and do what they do best – tax and regulate – even if they have a minimal understanding of the product.  Four states and the District of Columbia tax the sale of e-cigs and 23 other states considered proposals to impose excise taxes in 2015.  The Food and Drug Administration (FDA) is poised to issue restrictive rules on the e-cig industry, which have been under review by the Office of Budget and Management since October 23, 2015, and are expected to be approved in the next few weeks.

Akin to how Uber and Lyft are the new generation of taxi cabs and limousines, e-cigs are an industry advancement from the cigarettes of the “Marlboro Man” of yore (and the same lung cancer to which he succumbed to).  Uber and Lyft users praise the convenience compared to traditional forms of transportation.  E-cig users appreciate the difference between their inhale of choice and a pack of Marlboros.

There is one similarity between e-cigs and cigarettes:  nicotine.  This naturally occurring substance is found in tobacco plants and the leaves used in cigarettes.  Nicotine can also be found in the cartridge of an e-cig, although they are also available without nicotine.  An e-cig has a sensor that detects when the user inhaling, an atomizer heats the nicotine fluid in response and vaporizes the fluid that is inhaled. And to simulate that burning ember hanging from the mouth of the Marlboro Man, a small blue light glows with each inhale.  Unlike the smoldering choice of the Marlboro Man, no combustion is involved and no smoke is inhaled by the user.

Many studies have shown that e-cigs help life-long smokers smoke less, without the threat of lung cancer or side effects of breaking such a habit.  As a result of these lower negative health effects, e-cigs have been found to be an effective tool to reduce Medicare costs.

Although it had been a popular activity in the United States for more than a century, strong action was taken against cigarette smoking beginning in the 1960s.  The Surgeon General’s Advisory Committee on Smoking and Health was formed in 1964, and its recommendations led to the passage of the Federal Cigarette Labeling and Advertising Act in 1965, in which limitations and requirements for cigarette packaging were established.  In 1996, President Clinton proposed restrictions to be enforced by the FDA on the tobacco industry, which were eventually codified when President Obama signed the Family Smoking Prevention and Tobacco Control Act (FSPTCA), also known as the Tobacco Control Act, in 2009.

Although FSPTCA was signed on June 20, 2009, it was first introduced on February 15, 2007, in the previous Congress.  It gave the FDA the power to regulate the manufacture, sale, and advertisement of tobacco products or any similar products “deemed by the Secretary.”  E-cigs were deemed to be a tobacco product in 2014.  The FDA has proposed that February 2007 (the introduction date of FSPTCA) as the “grandfather date,” rather than the date the law was signed (an unusual bureaucratic overreach, even for the FDA).

According to the FDA’s proposed rules, all vapor products that became available on the market after February 2007 must go through a Pre-Market Tobacco Application (PMTA), which can cost millions of dollars for each individual product to go through the lengthy process.  A product is exempt from this application if it has a “substantial equivalence” to a product sold before February 2007.  Vapor products didn’t appear on the market until 2007, so nearly all products are caught in this retroactive regulatory trap.  The proposed regulation will likely kill the industry due to the cost and length of the approval process.  

The vapor industry is a growing field that has the ability to provide a long-loved activity at a lower cost with minimal health threats, but greedy excise taxes on the products by state governments and heavy regulations from the federal bureaucracy threaten to slow or even kill the industry.  The government needs to let the vapor industry, and other emerging businesses, grow unhindered.

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