By Zachary B. Luczyk
During the first week of November, Massachusetts health officials confirmed that a third resident had died from vaping related lung injuries. All three have died from the same lung- related illness. This type of emergency demands political moves to keep the public safe, no matter what the harsh economic draw backs are, because there is no price tag that can be placed on human life.
Vaping, the act of smoking a vapor through an electronic cigarette, has gained widespread popularity since 2007. Though, it seems fairly new, vaping and vape products have challenged the tobacco industry since about the 1930s. During this time period, the first patent was issued for an “electronic cigarette.” Roughly 30 years later, the first prototype for an e-cigarette was created, but never reached commercial production. In the 1980s, the first commercially ready e-cigarette entered the United States marketplace but failed shortly after its introduction. Although this early e-cigarette was a failure, the term “vape” was officially adopted into the English Language – solidifying itself in American culture. The failure of early vaping products was likely because these early vapes were bulky, undesirable, and unreliable. Additionally, marketing campaigns stood no match against big tobacco advertisements and vapes were unappealing to the young population.
In 2003, the vaping industry was re-born as the first successfully marketed and commercially produce vape entered the Chinese marketplace. Later, in 2006-07, e-cigarettes were re-introduced into the U.S., and concerns about vaping safety began to emerge. These products were on the market for more than two years, unregulated and unstudied, before the U.S. Food and Drug Administration (“FDA”) took action. The FDA’s focus was on the marketing and advertising campaigns of vaping companies, as they were directed towards America’s youth. In 2009, the FDA warned that some e-cigarettes contained diethylene glycol, while a 2015 study showed some e-cigarettes contained formaldehyde, two very harmful carcinogens. Nevertheless, over the next few years, vaping steadily gained market share, and exploded in 2015, despite studies, with the introduction of products like the Juul.
The Juul has become one of the most identifiable e-cigarettes to date. It has been branded as the “iPhone of vapes,” simply for its sleek, slender, futuristic USB memory stick-like design and portability. It is a rechargeable e-cigarette that is compatible with “Juulpods,” a disposable cartridge that comes in various flavors. Each pack of Juulpods contains the same amount of nicotine as a pack of cigarettes, but without the baggage of the aftertaste and smell. Juul’s popularity increased after heavy advertising campaigns and an influential social media presence. The Juul quickly became popular among all age groups as it became a lifestyle – something that was “cool” to do in public and flaunt on social media, as people caved to social peer pressures.
Unfortunately, in 2019, there have been multiple reports of deaths and unidentifiable incidents of lung disease among teenagers that have left researchers, health professionals, and state legislatures rushing to find an answer. While initially the belief was that these deaths and incidents of lung disease were caused by the chemicals of e-liquids, research has concluded that these deaths and incidents were likely caused by nicotine or marijuana-based e-liquids. Still, to prevent deaths, the government had to step in.
Local and state governments have the power to regulate or pass emergency legislation that is rationally related to health and safety of the public’s well-being. Such action is referred to as state’s “police power.” This power will be held constitutional as long as it does not attempt to regulate a fundamental right and it is rationally related to the goal the legislation seeks to serve (meaning it passes the rational-basis test). One state that has taken such action to combat vaping-related deaths and lung disease is Massachusetts.
At the end of September 2019, in the midst of a health crisis, Massachusetts Governor Charlie Baker banned the sale of all vaping products, including nicotine and marijuana-based e-liquids. The ban is scheduled to last until the end of January 2020, giving researchers time to decipher the reason behind the deaths and lung disease. This is not the first time Massachusetts has been on the forefront of exercising its inherent power to restrict the use of products associated with heath concerns. In 2004, Massachusetts became concerned with the risks associated with smoking indoors, in response the legislature banned smoking in the workplace, bars, and restaurants.
Although, the vaping ban is of limited duration (four months), vaping-product users and sellers are now asking how the state has the power to ban these products. Besides the Massachusetts Constitution, Governor Baker has statutory authority for the ban under M.G.L. Chapter 12, § 2A which states in pertinent part:
Upon declaration by the governor that an emergency exists which is detrimental to the public health, the commissioner may, with the approval of the governor and the public health council, during such period of emergency, take such action and incur such liabilities as he may deem necessary to assure the maintenance of public health and the prevention of disease.
While the ban seems harsh to some, but necessary to others, Governor Baker’s emergency legislation was a much-needed order, as it protects public safety while researchers further examine the health effects of e-liquids. Unlike cigarette smokers, those who vape can likely exceed their daily smoking intake, because of the portability and discrete smell of vapes. This issue is a major public issue and health concern. There is a reason why years ago the legislature made it illegal to smoke cigarettes in public areas – so why should vaping be treated any differently? The health hazards are a clear concern, and even though some establishments have banned vaping indoors, people still vape. In my personal experience, every time I enter a public restroom or crowded public area, such as a subway, there is someone vaping – sometimes multiple people vaping. The easy accessibility and masking agent of fruit flavors, disguise the stench unlike cigarette smoke. In addition, these characteristics seem to make vaping more acceptable in public as the flavors of e-liquids go unnoticed. Vaping products provide adolescents every opportunity to use these nicotine or marijuana-based products, without being noticed by parents, teachers, or other authority figures. This certainly undermines drug control and poses a significant risk to the public. Even though Governor Baker’s order is only for four-months, I feel the ban should be extended beyond that.
By the end of October 2019, there had been 1,888 reported cases of lung disease associated with vaping (including 37 deaths). Massachusetts is not the only state to take action to ban vape products. To date there are seven states and four cities that have banned, or are considering banning, e-cigarettes. Even President Donald J. Trump has taken an initiative to address issues surrounding the unknown health effects from vaping products. The Trump administration is working with the FDA, which has power under the Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”), to promulgate regulations to ban all flavored types of vaping products, with only allowing two exceptions: tobacco and menthol flavor. Flavored vaping products target adolescents with candy-like taste and eliminate the bad aftertaste for adults to encourage increased use. In addition, competitive prices with packs of cigarettes make the product more appealing.
Recently, the CDC announced a “breakthrough” in researching the outbreak of vaping-related deaths and lung disease. A chemical compound, Vitamin E acetate, is now thought to be the source as the the chemical was found in individuals who sought medical treatment for vaping-related illnesses. Vitamin E, popularly used in facial creams, is normally safe to ingest and use topically, but poses serious risks when it is vaporized and inhaled. When inhaled, the Vitamin E acetate becomes a sticky like substance that clings to the lung tissue, leading to breathing difficulties. In turn, this leads to a decrease in vascular circulation of oxygen throughout the body, leading to long term health risks. Though the CDC believes this may in fact be the cause of illnesses, more detailed research is still required.
The government along with the FDA must put specific regulations in place and warn the public of extreme health concerns on the use of these products. There must be a strong movement from all states to support banning these products until all the risks have been determined and communicated to the public. I believe that the young adult population thinks the use of this product is not only “cool socially” but safe to use. Too many lives are at risk, and we cannot sit back and allow these products to be readily available without a warning of all the consequences of using such a product. If we do nothing then more people are going to die. The tar-like substance thought to be caused by vaping products, sticks to the inside of the lungs, causes difficulty breathing and decreases the oxygen flow to the rest of the body. Just this past week, a Michigan teenager received a double lung transplant because of extensive vaping. The damage that vapes cause to one’s lungs are irreversible, and as a society we need to take action and get all the information regarding the risks of using these vaping products. We need to decide what is more important: the freedom to vape, or life itself.
Zachary Luczyk is a second-year day student at Suffolk University Law School, focusing his studies on Business Law. Prior to beginning law school and following a successful Division I Hockey Career that took him to the Frozen Four, Zach played ice hockey professionally both in the United States and in Europe. A native of Massachusetts, Zach is looking to pursue a career in Corporate and Business Law within the Bay State.
SOURCES
Matti Rose Vagnoni, Comment — The Vapes of Wrath: Why the FDA Should Ban Fruity and Sweet Flavored E-Liquids to Preclude Adolescent use of E-Cigarettes, 71 Admin. L. Rev. 277 (2019).
https://web.stanford.edu/class/e297c/trade_environment/health/htobacco.html
https://www.cancercouncil.com.au/31899/uncategorized/a-brief-history-of-smoking/
https://www.merriam-webster.com/dictionary/vape
http://www.casaa.org/historical-timeline-of-electronic-cigarettes/
https://www.cnn.com/2015/12/31/health/where-we-stand-now-e-cigarettes/index.html
https://www.juul.com/mission-values
https://www.law360.com/articles/1201360/thc-vaping-health-issues-warrant-safety-standards
https://www.mentalfloss.com/article/23758/7-historical-bans-smoking
https://www.nytimes.com/interactive/2019/health/vaping-illness-tracker.html
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter17/Section2A
https://www.wbur.org/commonhealth/2019/09/25/vaping-products-sale-ban
https://time.com/5726491/michigan-teen-vaping-damage-lung-transplant/
https://www.theverge.com/2016/7/27/12299784/electronic-cigarettes-e-cigs-chemicals-cancer-fda
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.