E-cigarettes, the vaping device popularly referred to as a “vaping pen,” are not regulated by the Federal Government.
However, a number of states, including California, New York, Massachusetts, and Connecticut, are working to do just that.
According to a new report by the Environmental Working Group, California, with a population of approximately 5.4 million, is the state with the highest rate of e-cigarette use.
California’s e-cigarettes are also the second-highest use state in terms of the number of vapers per 100,000 residents, behind New York and Massachusetts, which have rates of approximately 7.4 and 7.2, respectively.
California is also the only state that has seen an increase in e-cig use since the beginning of 2017.
In fact, according to E-Cigarette Tax Calculator, the California rate has more than doubled since 2018, from 1,632 per 100 in 2020 to 2,091 in 2021.
While there are a number state laws on the books regarding e-cigs, California law does not require manufacturers of electronic cigarettes to have a specific e-liquid formulation that meets the state’s specific e cigarette regulations.
Instead, manufacturers must create a “safe vapor” that can be consumed by anyone.
“The FDA, which is supposed to regulate e-tobacco products, has consistently refused to enforce the laws it enforces, making it harder for businesses to comply with state laws,” says Emily Bazelon, an associate professor at the UCLA School of Law who has researched the regulation of e cigarettes.
In 2018, California enacted a law that prohibits the manufacture of e liquids that are “intoxicating,” or that have “intense, volatile, or hallucinogenic” tastes.
“E-cigarettes have not been adequately tested to be safe for public health purposes and therefore do not meet California’s safety requirements for use in cigarettes,” Bazelons report concluded.
In response to the report, California’s Attorney General said that “there are no regulations in California that would require manufacturers to produce a safe e-vapor to meet the requirements of the California Tobacco Control Act.”
A spokesperson for the Department of Justice said that the agency “will review all the evidence and consider all of the available scientific data before deciding whether to take enforcement action.”
While some states are actively trying to impose restrictions on e-liquids, others are trying to ban them outright.
New York City passed a ban on e liquid in 2018.
In 2017, Pennsylvania passed a law banning the manufacture, sale, and distribution of e liquid containing nicotine or propylene glycol in 2018, which was struck down in 2019.
A federal judge in 2018 also ruled that the federal government can regulate e liquid as tobacco, but that ruling is set to be appealed.
While these laws are mostly symbolic, they are not without consequences.
“States are already regulating e-smokers by requiring them to get a specific, written permit and to be licensed to sell e-juice in their state,” Bock said.
“But if e-drinks are banned, these regulations are going to be more costly and harder for states to comply.
So they’re likely to pass or not pass laws that have an adverse impact on businesses.”
E-cigarette bans may be gaining momentum, but the question remains whether or not they will continue to have an impact on the industry.
“This is not going to disappear, and it’s not going away any time soon,” Bocker said.