Vape Love and Hate: Governments try to make sense of e-cigarette policy

Originally published for RELX Tech – December 2019


Hon Lik is the Chinese pharmacist credited as the creator of the modern, commercially viable e-cigarette. His father, a life-long smoker, died of lung cancer. Lik himself had averaged a pack and a half per day for the majority of his life. He launched the first commercial e-cigarette brand, Ruyan, in 2003. He founded the modern vape industry and helped mitigate the harm of one of the most prolific killers in the 20th century: the cigarette. 

The World Health Organization estimates that more people died in the 20th century because of cigarettes than in the two World Wars combined. This staggering toll of smoking cannot be attributed entirely to the smokers themselves. Big Tobacco has notoriously pushed cigarettes on the public, including children, women, and minorities. For years, tobacco companies have fudged the truth and used outright deception to protect their profit margins. In many parts of the world, they still do

It comes as no surprise that anything resembling smoking would be regarded with suspicion. After the years of outright lying by big tobacco, transparency will be the key to earn the trust of the public when it comes to smoking cessation options and alternatives.

Finding alternatives to smoking is an urgent necessity, as the number of smokers worldwide is still rising despite the widespread understanding of the harm of smoking. E-cigarettes may help, but governmental regulation has not kept up with smoking cessation technology and the rising popularity of vaping. 

Governments around the world have been scrambling to understand and create coherent laws to govern the industry. These enforcement approaches vary widely, subject to economic, cultural, and even religious forces. Even between places that are similar in terms of culture, language, and standard of living, significant policy differences persist. Comparing the attitudes towards vaping held in New Zealand, Australia, U.K., and the U.S. shows how vast these differences can be. 

United States: Media Hysteria Created a Divided Public

U.S. vaping policy is driven by sensational headlines on e-cigarette use by teens and high-visibility incidents in the media. 

Impact of smoking:

The U.S. has 34.3 million smokers across the 50 states, territories, and dependencies. Nearly one in every five deaths is caused by smoking, amounting to more than 480,000 deaths each year.

Electronic cigarette advocates protest anti-vaping laws outside City Hall in New York. Richard Levine / Corbis

Vaping Legal Status:

The U.S. stands at a crossroads in terms of vaping regulation on the national, state, and local levels. A few prominent voices are encouraging panic, and propose views that are likely to hurt public health. Questionable youth education campaigns may also go the way of D.A.R.E, and result in more harm than good, keeping another generation smoking. After a health scare caused by tainted and illegal THC cartridges, the state of Michigan has passed a broad ban on all e-cigarettes, joining San Francisco that instituted a temporary ban on e-cigarettes, pending FDA review. Both places allow sales of cigarettes. .

Other public health advocates Many others are pursuing advocating for harm reduction strategies and looking to find solutions that promote health and personal responsibility, without the drawbacks of the typical prohibition approach. The San Francisco and Michigan vape bans are is likely to inspire state and local governments to take similar actions, but affect the future of vaping in the U.S., but these policies are likely driven by journalists and public sentiment, rather than by scientists and public health experts.

Youth Impacts: 

Former FDA Commissioner Scott Gottlieb, who was appointed by President Trump and abruptly resigned in March 2019, was an aggressive opponent of e-cigarettes as well as Big Tobacco. He termed youth vaping an “epidemic”, and pushed for the flavor ban, seeking to stop companies from selling fruity or sweet e-liquid flavors. Despite acknowledging the role of e-cigarettes in helping smokers quit, he led a policy pursuing bans, taxing, and restrictions on this alternative. Much of the anti-vaping policy was predicated on stopping the dubiousyouth vaping epidemic”. 

Former FDA Commissioner Dr. Scott Gottlieb. Albert H. Teich / Shutterstock.com

Regulatory Approach: 

The Food and Drug Administration has made the case to regulate e-cigarettes as drug delivery systems since 2008, when it succeeded in blocking the import of devices. A judge overruled this argument in 2010, and by 2014 the FDA proposed a new set of regulations which included e-cigarettes and required the disclosure of e-liquid ingredients, and banning minors from purchasing them. In 2016 the FDA declared that e-cigarette vendors needed to prepare the paperwork and submit products for FDA approval within two years. After a court challenge, the FDA moved the deadline for product submission for review until 2022. 

Youth Vaping: 

The FDA Commissioner between 2017 and 2019, Scott Gottlieb, who has abruptly resigned in March, has spent his time in office as an aggressive opponent of e-cigarettes as well as Big Tobacco. He has termed youth vaping an “epidemic”, and pushed for the flavor ban, seeking to stop companies from selling fruity or sweet e-liquid flavors. Despite acknowledging the role of e-cigarettes in helping smokers quit, he has led a policy pursuing bans, taxing, and restrictions on this alternative. Much of the anti-vaping policy was predicated on stopping the dubiousyouth vaping epidemic”. 

Media Coverage and Public Attitudes: 

State and local institutions are grappling with the impact of vaping as well. With wide media coverage, local politicians responded with raising the age requirement for purchasing e-cigarettes and tobacco products, giving kids drug-tests in school, and even outright banning of e-cigarettes (while keeping cigarettes on the shelves). Many of the legislative responses seem to be driven by the hubbub of public opinion rather than research, focusing on sensationalism rather than balanced but complex positions. 

The hypocrisy around harm reduction strategies for smokers goes unnoticed. Prominent politicians on both sides of the aisle find themselves supporting an alarmist anti-smoking agenda, potentially denying smokers an effective harm reduction tool in the process. In the midst of a moral panic around vaping, mentioning the subject gets mentions and clicks, even if the headline claims don’t match the science, or result in “insane public policy”.  
Even the anti-vaping leader, Scott Gottlieb, seems conflicted on the subject. After he resigned from the FDA in March, he quickly proceeded to question the decision of Rite Aid pharmacies to discontinue e-cigarette sales, accusing the retailer of choosing money over harm reduction and public benefit. After leading a very anti-vaping FDA, Gottlieb’s comments make it difficult to see where his actual stance ends, and the FDA conflict of interest begins.

Australia: Prescription or Ban

Australia has taken a strong stance against nicotine, treating it as a poison (unless it is in a cigarette). Legal restrictions on nicotine in e-liquid have created a black market and heated debate.

Impact of smoking: 

Around 2.5 million, or about 10% of Australians smoke, with around 15,500 Australians dying from the habit yearly.  

Youth Impact: 

Around 10% of Australian teenagers aged 16 – 17 smoke cigarettes regularly. While many politicians are concerned about creating a new generation of nicotine addicts, studies estimate that only 0.5% of those who never smoked taking up or even trying vaping.

Melbourne, Australia – August 16, 2016: Vapers gathered at Parliament House in Melbourne, Victoria, to protest the introduction of new laws that would treat vaping like smoking. John Abbate / Shutterstock.com

Vaping Legal Status:

Under Australian law, the sale of nicotine-containing e-cigarettes and e-liquid is illegal. Nicotine-containing e-liquid has been banned outright since 2009, but around 200,000 Australians still use e-cigarettes regularly. While it is legal to buy vaping devices, the e-liquid is usually shipped in from abroad.

There is an exception for devices for “nicotine replacement therapy”, the sale of which must be registered with the Therapeutic Goods Administration. The TGA is the Australian governing body that assesses and monitors the use of medical devices and medication. The purchase of nicotine-containing e-liquid is permitted with a prescription from a doctor.

Regulatory Approach: 

The government justifies the ban on nicotine-containing e-liquid because (and this is a real quote) “every form of nicotine except for replacement therapies and cigarettes are classified as a form of poison.” The irony is that cigarettes themselves are not classified as such – considering that cigarette smoke contains arsenic, hydrogen cyanide, ammonia, acrolein, lead, formaldehyde, and thousands of other chemicals that are routinely used as poisons and pesticides. 

Regulations vary somewhat from state to state. The sale of vape devices is legal in all states except for Western Australia, while the use of e-cigarettes with nicotine e-liquid is banned in Victoria, Tasmania, and Queensland. In many states, the sale is legal but not the use or vice-versa. 

Research and Study: 

Research into the impact of vaping on Australia’s public health shows no “gateway drug” effect. They do show a need for sensible regulation, as under the ban the public relies on a black-market supply of e-liquid, making thorough quality control impossible. The McKell Institute, a non-partisan public policy think tank that specializes in providing practical solutions to public health issues in Australia has recommended to end the ban on vaping, and re-introduction of media messaging to help smokers quit cigarettes.

Media Coverage and Public Attitudes: 

Vaping enthusiasts are pushing for legalization and a significant black market has emerged. Most Australians rely on cross-border e-commerce sites to obtain nicotine-containing e-liquids. Meanwhile, there are hard-line vaping opponents, like the Health Minister, Greg Hunt, who advocate for outright bans. 

Many politicians, like the chairman of the committee assigned to investigate e-cigarette legalization, Trent Zimmerman, and committee member Andrew Laming, have strongly advocated for lifting the vaping ban. Recent media coverage of the vaping issue tends to cast vaping in a positive light, pointing out the irony of allowing the sale of cigarettes but not vapes. Young Australians generally agree with the need to regulate e-cigarettes, while opposing the current system of “prescription or ban”. 

New Zealand: “Vape to Quit” Model 

New Zealand encourages vaping as a way to quit smoking and reduce public health harms. An early adopter of the reduced-harm approach to vaping, New Zealand is seeing a rapid decline in smoking rates. 

Impact of smoking:

Just over half a million New Zealanders smoke. New Zealand has made significant progress in smoking cessation through public education and banning smoking in hospitality venues and enclosed public spaces. Since 1997, the percentage of smokers has dropped from 25% to 13%. 

Youth Impact: 

The New Zealand youth smoking rate has dropped from 16% in 2007 to only 3.6% in 2017. Around 2% of teens aged 16-17 use e-cigarettes habitually, and of that 90% were habitual cigarette smokers. Youth vaping rates and behaviors are consistent with the “vape to quit smoking” model. 

Vaping Legal Status:

Vaping has always been legal in New Zealand, and is even welcomed as a means to quit smoking and reduce the harms of smoking. Under the 1990 Smoke-Free Environments Act, advertising of vaping products is banned. Sale to minors under 18 is also illegal.

While tobacco smoking is banned in public places like restaurants, offices, and bars, businesses are free to determine their own vaping policies. Recent legislative action has sought to restrict these use cases. 

New Zealand Parliament / Shutterstock.com

Regulatory Approach: 

The official government position on vaping states that “smokers switching to vaping products are highly likely to reduce the risks to their health and those around them.” While seeking to tighten the controls in order to prevent minors from buying e-cigarettes, the government has also launched a “vape to quit smoking” site to educate the public on risks and benefits of vaping. 

Research:

New Zealand was one of the first nations to study the effects of e-cigarettes and recognize the potential of this technology for public health. The year before Australia banned e-cigarettes, Health New Zealand released a study showing that Hon Lik’s original e-cigarette was significantly less toxic than regular cigarettes. 

Media Coverage and Public Attitudes: 

As one of the first countries that have recognized and embraced the potential of vaping as a smoking cessation tool, the New Zealand public seems to embrace the idea of responsible vaping. The press celebrates vaping entrepreneurship of New Zealanders. The government encourages quitting smoking and promotes switching to vaping as an effective harm reduction strategy. 

United Kingdom: Vaping is a Tool for Public Health

The U.K. promotes vaping to reduce smoking, sometimes in radical ways. With strong government support and consumer protections, vaping is welcomed as a tool for public health. 

Impact of smoking: 

Close to 80,000 U.K. residents die from smoking-related illnesses each year, but smoking rates are consistently reaching all-time lows. In 2019 the smoking rate reached 14.4%, a drop of almost 5% in a decade. Vaping is the most popular approach to quitting smoking, with 2.8 million Britons using e-cigarettes. An additional 1.3 million have used vaping to quit smoking and then ceased vaping altogether. 

Youth Impacts:

Youth vaping is a topic of debate in Parliament, but research findings in Britain have consistently shown that youth vaping is not a gateway habit to smoking. 

Vaping Legal Status:

In 2007 the United Kingdom imposed a ban on smoking in enclosed public spaces like pubs and restaurants. At the time, about 21% of Britons smoked, and e-cigarettes started to gain popularity as an alternative.

Regulatory Approach: 

Based on research recommendations from Public Health of England, vaping is broadly welcomed and encouraged as a way to quit smoking. Venue owners decide whether vaping is restricted or allowed, but no laws govern the practice. Vaping while driving can result in fines for being a nuisance and causing distraction. Strict consumer protection laws ensure high-quality products.  

Research:

In 2009, The Action on Smoking and Health (ASH), a public health charity that seeks to eliminate the harm caused by tobacco, released this poster endorsing the use of e-cigarettes as part of a harm reduction strategy. This document also supported the Royal College of Physicians’ proposed reform of the U.K. nicotine regulatory framework to give heavily-addicted smokers an alternative.

In 2015, Public Health England released a seminal study on e-cigarettes, estimating them to be 95% less harmful than cigarettes. The study also examined public opinion and knowledge regarding vaping, as well as the likelihood of the new trend to serve as a gateway to smoking for children. About half the public did not realize that e-cigarettes are less harmful than smoking, and the study saw no evidence that vaping acts as a “gateway drug” for children and non-smokers. The public health organization reaffirmed these findings in 2018.

Media Coverage and Public Attitudes: 

Public Health England has strongly advocated the use of vaping to curb smoking, even in hospitals. Two hospitals are piloting the idea already, as part of the overall plan to minimize or eliminate smoking in the U.K. by 2030. These government and NHS-supported moves are generally met with praise from the media and the public

Political strategy and public opinion can harm public health. Prohibition does not serve the public interest.  

Despite being similar in culture and standard of living, as well as speaking the same language, the regulatory attitudes within these countries run along very different and often conflicting courses. While the U.S. is in a moral panic, the prohibition of the Australian model leads to black-market sales, making regulation and quality control harder. 

As the U.S. gears up for the most expensive election ever, fear becomes a publicity currency, and moral panic is a great way to stoke fear.  By perpetuating the panic narrative, governments risk halving the rate of quitting success, while keeping more people smoking, longer. It would be a great shame if a temporary celebrity came at the cost of the health of millions of smokers. 

Without sensible, research and data-driven approach to regulation, vaping will simply move into the unregulated Wild West of the black markets, potentially endangering millions. Proactive, research-driven regulation helps ensure product quality and safety. As policies around vaping evolve, we hope that the regulators pursue positive public health outcomes, with risk-appropriate regulation that helps reduce the harm of smoking.