Clueless Legislators Deter Smokers From Vaping

California undermines public health by arbitrarily classifying e-cigarettes as tobacco products.


On May 4, the day before the Food and Drug Administration officially classified e-cigarettes as "tobacco products," California did the same thing. Gov. Jerry Brown signed SBX2 5, which expands the definition of tobacco product under several statutes to include "an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device." Among other things, the change means that vaping will be banned everywhere that smoking is prohibited and, since another bill signed by Brown raises the age for buying tobacco products from 18 to 21, adults younger than 21 will no longer be allowed to buy e-cigarettes.

California's policy shift is not as consequential as the onerous FDA regulations unveiled the next day, which will shut down thousands of e-cigarette and e-liquid businesses. But it is equally misguided, and the arguments used by its supporters show that the people driving policy in this area are either remarkably clueless or brazenly dishonest. Mark Leno, the state senator who introduced SBX2 5, might be both.

A riddle attributed to Abraham Lincoln asks: If you call a tail a leg, how many legs does a dog have? The answer: Four, because calling a tail a leg does not make it a leg. Likewise, legislators (or bureaucrats empowered by them) can call e-cigarettes "tobacco products," but that does not change the fact that they contain no tobacco and generate no smoke. 

Leno, a Democrat whose district includes San Francisco, has 18 posts on his website that mention e-cigarettes, one of which is titled "E-Cigarettes Are Tobacco Products." Visitors who click on that link in the hope of finding something resembling an argument will be disappointed. The post consists of a photograph showing Leno posing with supporters of his bill next to a placard that says "E-Cigarettes Are Tobacco Products." 

It's true that the nicotine e-cigarettes often are used to deliver is derived from tobacco, but that is also true of the nicotine in smoking cessation aids such as gum, patches, and inhalers, which neither the FDA nor the state of California considers tobacco products. Furthermore, Leno's definition of tobacco product includes nicotine-free e-liquids and the devices that turn them into inhalable aerosols, neither of which have anything to do with tobacco.

The erroneous identification of e-cigarettes with tobacco products is closely tied to the misconception that e-cigarettes are just as dangerous as the conventional, combustible kind. "Whether you get people hooked on e-cigarettes or regular cigarettes, it's nicotine addiction and it kills," Leno told Reuters last year. "We're going to see hundreds of thousands of family members and friends die from e-cigarette use, just like we did from traditional tobacco use."

No one this ill-informed has any business writing legislation that deals with e-cigarettes. Contrary to what Leno seems to think, nicotine addiction is not inherently deadly. What kills smokers is not nicotine; it's the tobacco combustion products they inhale along with nicotine. If nicotine were the cause of smoking-related disease and death, how could the FDA possibly have approved products like Nicorette gum and Nicoderm CQ as safe and effective ways to quit smoking?

E-cigarettes build on the same idea, offering a less hazardous way to consume nicotine—one that is more appealing to many smokers because it more closely resembles their current habit. Although e-cigarettes probably are not quite as safe as the pharmaceutical versions of nicotine replacement, they are close.

"While vaping may not be 100% safe," said a 2015 report from Public Health England, "most of the chemicals causing smoking-related disease are absent and the chemicals which are present pose limited danger. It has been previously estimated that [e-cigarettes] are around 95% safer than smoking. This appears to remain a reasonable estimate."

According to a report published by the Royal College of Physicians last month, even that estimate may exaggerate the risk posed by vaping. "Although it is not possible to quantify the long-term health risks associated with e-cigarettes precisely," the venerable medical society said, "the available data suggest that they are unlikely to exceed 5% of those associated with smoked tobacco products, and may well be substantially lower than this figure."

Yet somehow Mark Leno predicts that the death toll from vaping will be comparable to the death toll from smoking. "The e-cigarette is nothing more than a new delivery system for toxic and addictive nicotine," he declares, seemingly oblivious to the point that the delivery system makes a crucial difference as far as health risks go. "Like traditional cigarettes, e-cigarettes deliver nicotine in a cloud of other toxic chemicals," Leno says, apparently unaware that vaping delivers far fewer toxins at far lower levels.

Leno also asserts, based on even less evidence, that "e-cigarettes pose potentially serious health risks" to "those who inhale secondhand vapors," which is his justification for extending California's smoking restrictions to cover vaping.  To support that contention, Leno turns to Kimberly Amazeen, vice president for public policy and advocacy at the American Lung Association in California, who says "initial studies have found detectable levels of toxic cancer-causing chemicals, such as formaldehyde, benzene, and nitrosamines, coming from secondhand e-cigarette emissions." 

Since it's impossible to find undetectable levels of something, Amazeen's wording is telling. When an alarmist informs you that "detectable levels" of known toxins have been found somewhere, it is safe to surmise that the levels are very, very low, which is generally the case with the aerosol produced by properly operated vaping products.

study published last year in the journal Regulatory Toxicology and Pharmacology analyzed puffs from three flavors of Blue eCigs, which at the time accounted for about 50 percent of the U.S. market, and two flavors of SKYCIGS, which represented around 30 percent of the e-cigarettes sold in the U.K. The researchers compared the output of these products with air samples and with the smoke generated by Marlboro Golds and two varieties of Lambert & Butler cigarettes.

The e-cigarette aerosols consisted mainly of glycerin or propylene glycol (70 percent to 85 percent), water (10 percent to 19 percent), flavoring (3 percent to 11 percent), and nicotine (1 percent to 2 percent). The researchers measured eight kinds of "harmful and potentially harmful constituents" (HPHCs): carbon monoxide, carbonyls, phenolics, volatiles, metals, tobacco-specific nitrosamines, polyaromatic amines, and polyaromatic hydrocarbons. The combined weight of all these in 99 puffs from a Blu Classic Tobacco Disposable (which proved to be typical) was less than 0.17 milligram. That's about the same as the total amount of HPHCs (0.16 milligram) found in 99 puffs of air. By contrast, a single Marlboro Gold generated 30.6 milligrams of HPHCs—180 times as much as the Blu eCig. Per puff, the Marlboro Gold generated 3,357 nanograms of HPHCs—about 2,000 times as much as the Blu eCig.

Results like these led the Royal College of Physicians to conclude that "harm to others from vapour exposure is negligible." Given the enormous differences between tobacco smoke and e-cigarette vapor, it makes no sense to put e-cigarettes in the same category as the tobacco-burning kind, whether your concern is health hazards for vapers or health hazards for people in their vicinity.

Based on that misclassification, California has erased one important advantage of e-cigarettes: the ability to use them in settings where smoking is prohibited. At the margin, the loss of that advantage will deter some people from substituting vaping for smoking, a switch that could have saved their lives. The official equation of e-cigarettes with tobacco products will have a similar effect by sending the message that smokers might as well keep smoking.

Contrary to Leno's wild claims, there is no evidence that e-cigarettes are deadly. He should be more concerned about the lethal effect of his ignorant, self-righteous grandstanding.

This article originally appeared at Forbes.com.