‘Vaping’ Decision Up in the Air, but Some Fuming About Potential e-Cigarette Regulation

By Sarah Sipek

Oct. 29, 2014

When it comes to the Food and Drug Administration’s decision on whether to regulate the production and sale of electronic cigarettes, the nation is still waiting for the puff of white smoke.

Or in this case, vapor.

The FDA is considering whether to extend its current authority over tobacco products to include electronic, or e-cigarettes under the proposed Tobacco Products Deemed to be Subject to the Food, Drug & Cosmetic Act. If approved, the act would collect e-cigarettes and other novel products under the Family Smoking Prevention and Tobacco Control Act, which was signed into law by President Barack Obama in 2009. The act gives the FDA the ability to regulate the manufacture, distribution and marketing of tobacco products.  

Opponents of the law, such as Philip Daman, chairman and president of the Smoke-Free Alternatives Trade Association, the largest trade group dedicated to advocacy, awareness and education in the vapor products industry, cite its original purpose as a defense against FDA regulation. Daman said the legislation was drafted to counteract the deceitful practices of tobacco companies that knowingly endangered the lives of consumers in order to make a profit.

The high rates of death and disease caused by smoking are the result of inhaled toxins other than nicotine contained in traditional cigarette smoke, according to a research report on the health impact of e-cigarettes published in the May 2014 issue of the journal Addiction.

Where There’s e-Smoke …
According to XpertHR, employers should take an active role by following these steps:
• Determine whether the state or local government has already implemented laws regulating e-cigarette usage.
• Survey the workforce for employees with severe allergies or respiratory conditions, as they are most likely at risk for adverse effects from exposure to e-cigarette vapor.
• Check for liability issues, as employers can expect to be sued by employees who will claim illness or injury as a result of a colleague’s e-cigarette usage.
• Survey employees to determine if there is a strong demand for the practice to be allowed in the workplace.
—Sarah Sipek

E-cigarettes do not contain tobacco, so they should be exempt from the law, Daman said.

While the FDA weighs each argument, more people are taking up vaping, the colloquial term for using an e-cigarette that provides vapor containing nicotine without tobacco combustion.

A study co-authored by the U.S. Centers for Disease Control and Prevention and Georgia State University published in the journal Nicotine & Tobacco Research in August found that e-cigarette awareness grew 80 percent between 2010 and 2013, and usage more than doubled during that time period. The study found that 20.4 million Americans have tried e-cigarettes at least once.

Rapid adoption is troubling to health professionals in part because no one has definitively proven whether e-cigarettes pose a significant health risk.

A 2013 Drexel University study into the health effects of e-cigarette vapor found that e-cigarette users are at no measurable risk of exposure to harmful toxins. When it came to workplace exposure, risk levels were found to be at less than 1 percent of the acceptable threshold.

However, the World Health Organization favors harsher restrictions on the production and advertising of e-cigarettes. The global health agency said in a report that e-cigarettes are "likely to be less toxic" than combustible cigarettes but that the amount of risk reduction remains unknown. It added that nicotine vapor products still pose serious health threats to adolescents and fetuses, in addition to exposing bystanders to nicotine and toxicants.

The legal uncertainty means that it is up to employers to determine policies for their own offices. XpertHR, an HR resource firm that specializes in providing legal guidance, compiled a toolkit to aid in the management of e-cigarettes in the workplace.

“The biggest mistake employers can make is ignoring the issue,” said Ashley Shaw, a legal editor at XpertHR.

The decision ultimately comes down to weighing a potential workplace wellness issue against workplace culture.

“Whatever the policies that comes in the absence of the law, they have to have a cultural sensitivity,” Daman said. 

Sarah Sipek is a Workforce associate editor.

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