By Anthony W. Metzler

In 2003, Hon Lik, a Chinese pharmacist, developed the E-Cigarette, or “Vape” to help him stop smoking.[1] By 2006, Vapes hit the US, and between 2006 and 2013, sales for Vapes soared to $2 Billion. Vaporizers do not emit the heavy smoke and odor that traditional smoking apparatuses, like paper-rolled tobacco or marijuana, do. In fact, discretion is one of the key elements of the rise of Vapes, partly credited by individuals that did not want to leave the bar to have a smoke. But, users still have to leave bars to smoke e-cigarettes in many towns in Massachusetts, and this begs the question; do lawmakers have a stigma against smokers?

Vapes look like a high-tech version of their cruder and more traditional counterparts. They often have the appearance of a pen, with an LED light at the butt, emulating the ash of a cigarette. As a smoker inhales, the light ignites and gets brighter as the user drags, and at the end, a dense cloud of vapor fills the air.[2] Vapes work using an atomizer that heats liquid from a cartridge to boiling and that boiling liquid condenses and becomes vapor, which is inhaled by the user. The cloud of vapor dispensed as a result dissipates in seconds, leaving virtually no trail behind. Vapes have a very faint and brief odor, customarily matching the flavor cartridge that is vaporized. A cartridge usually holds over smokers for about the same amount of time as a pack of cigarettes, and the entire system costs anywhere from $10 to over several hundred dollars, depending on quality and the aftermarket modifications to the unit. One factor that has contributed to the rise in popularity of Vapes is the one-time ability to smoke indoors where cigarettes are banned, like in a bar.

Vapes are not necessarily a safe alternative to cigarettes.[3] Researches at New York University of Medicine found that cultured human lung and bladder cells that were exposed to Vapes vapor for the equivalent of ten years experienced damage that could increase the risk of cancer and heart disease. The FDA has not approved Vapes as a quit-smoking aid as the evidence was inconclusive about the benefits outweighing the risks.[4] Vapes are also surging in the medical and recreational marijuana markets. The discretion that Vapes produce has attracted marijuana enthusiasts, and the market has responded by accommodating marijuana users with the development of dry herb and concentrate capable devices.[5] Because Vapes are so new to the market, however, it is still unclear the full extent of the potential dangers of vaping.

The worldwide retail of Vapes hit $2.5 Billion in 2013.[6] It is projected by Wells Fargo that that number will have exceeded $10 Billion by 2017. Bloomberg projects that sales will supersede traditional cigarettes by 2047.[7] The amount of money being invested can only help Vapes, as it currently stands there are some potentially grand risks associated. Isolated incidents have reported cases where Vapes explode, at times directly in users mouths, and other times in backpacks on school busses.[8] However, studies support that nearly 2 million high school students will use e-cigarettes spanning the course of only one month, and with these drastic numbers regulations are being stressed by lawmakers across the country.

Vapes can be regulated as tobacco products as a result of Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010). Massachusetts specifically has categorized e-cigarettes under the same statute as traditional smoking products under 940 CMR 21.00.[9] Massachusetts defines Electronic smoking devices as “any product that can deliver nicotine to the user through inhalation of vapor [including] any component part of such product, including liquid for use in the device regardless of whether the liquid contains nicotine, [and] whether or not sold separately . . . .”[10] However, the statute describes several limitations to packaging, sampling, and marketing that is synonymous with traditional cigarettes. These limitations include the sale of Vapes to anyone under 18, (21 in Boston), the mandate of child resistant packaging, and the prohibition of repackaging and reselling e-cigarettes or related products in smaller quantities than the smallest packaged distributed by the manufacturer for individual consumer use. There is no special permit that is required to sell or use e-cigarettes. In addition to these regulations, there are also over 117 towns in Massachusetts that have individually enacted local ordinances banning e-cigarette use indoors.[11]

The real question that comes into mind when reading on some of these regulations is why? The implications of Vapes are unclear. For these reasons, and for the mere sake that often Vapes contain either nicotine or marijuana, it is certainly reasonable, and honestly downright necessary, that every measure is taken to ensure children cannot have legal access to these items. But why are so many towns taking extra precautions to ban indoor use of these items? In the opinion of this author, this ban perpetuates a stigma against smokers. As displayed throughout this article one of the main draws of e-cigarettes is discretion. There is a nominal effect, at best, that comes with the use of Vapes; the odor lasts briefly if it all, and the vapors dissipate in seconds. Vapes were designed with the intention to curtail smoking cigarettes, and many of the reasons that cigarettes are banned indoors (i.e. the odor, the dangers of second-hand smoke) are not a factor with E-cigarettes. But, still lawmakers have decided to ban indoor use in 117 cities and town in Massachusetts and the answer again lies in stigma; it is a cultural norm to associate smoking with a negative connotation, and this has carried over to the use of Vapes.

In conclusion, Vapes are seemingly an entity that is here to stay. While the possible health and safety risks of E-cigarettes are still not fully known, the sheer magnitude of the popularity and capital behind the industry is enough to sustain its influence on the country. While laws pass that treat e-cigarettes like traditional tobacco products, they are simply not tobacco products. It is, always has been and always will be important to protect children of the Commonwealth and of the country in general from devices that would harm them until they become of legal age to make the decision themselves. For those that decide to Vape, there should not be a stigma held against them that forbids their right to express themselves through their habit. The legal users of these products are forced to shamefully walk outside and go fifty feet away from an entrance to a building even though using their product would not affect the people around them. This is unfair and unless clear policy is codified with a rationale behind the stigma against users of e-cigarettes, it will continue to burden those that make usage out of this legal technology.

Student Bio: Anthony is a 2L at Suffolk University Law School and a member of the Journal of High Technology Law.












Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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