Where Do We Stand?
• The substantial action has been from state
legislatures
– Restricting Youth Sales
– Restricting Use in Public Places
– Labeling/Packaging
– Defining “e-cigarette”
But AGs are prepared to move into this space,
they have the experience working individually
and collectively, and they have hammer that is
the state consumer protection act.
THE NUMBERS
• Restriction on Sales to Minors:
– currently 41 States with laws on the books
– laws vary from state to state
• Use in Public Places:
– 3 States appear to ban e-cigarettes under existing “Smokefree venue” laws
– At least 13 others have selective prohibitions, ranging
from school property and correctional facility prohibitions
to all state agency grounds
– At least 188 cities and counties throughout 26 states and
the District of Columbia have enacted laws prohibiting or
limiting the use of e-cigarettes in public venues
• laws vary widely, and are specific to the city/county.
THE NUMBERS (cont.)
• Labeling/Packaging:
– Minnesota requires child-resistant packaging for
liquid nicotine containers (eff. Jan 1, 2015)
– Only proposed legislation but no other current
requirements for ingredient labeling or packaging
regulation
• Advertising
– No bans on TV advertisements
– No restrictions on advertising the “benefits” of ecigarettes
• Defining “e-cigarette”
– Tobacco product: 11 states
– Alternative Nicotine product: 14 states
– Vapor product: 11 states
– Other: 5 states
Kentucky’s Laws
• Current Kentucky Law defines electronic cigarettes
as “vapor products” under KRS §438.305 (9)(a).
• The Commonwealth places restrictions on:
– Sale/distribution/purchase of e-cigarettes to
minors under the age of 18. KRS §438.311; KRS
§438.313.
– Use of vending machines to sell e-cigarettes,
unless located in adult-only establishment. KRS
§438.315.
• Requires random inspections of retail establishments
that sell electronic cigarettes. KRS §438.330
Action by State Attorneys General
• State Attorneys General are just beginning to tackle the
issue
• 2010: California and Oregon AG’s sue Smoking
Everywhere
• 2013: National Association of Attorneys General: letter
to the FDA to bring e-cigarettes under the definition of
“tobacco products” and the Tobacco Control Act.
– 40 Attorneys General signed this, including KY
– Citing Sottera, Inc. v. Food & Drug Administration,
627 F.3d 891 (D.C. Cir. 2010)
• 2014: Maryland Attorney General Douglas F. Gansler
– Letter to e-cig manufacturers with 3 inquiries
ATTORNEY GENERAL GANSLER’S LETTER
“[I] urge you to take action to address these significant public health issues,
including:
1. Placing clear and conspicuous warnings on the packaging for e-cigarettes
and liquid nicotine cartridges that warn of the dangers of touching or
ingesting nicotine. [Omission of material information]
1. Refraining from marketing that appeals to children, including not
offering and selling flavors of liquid nicotine that appeal to children. [Unfair
or Deceptive Trade Practice]
1. Using product designs that prevent inadvertent exposure to liquid
nicotine and limit children's ability to access the liquid nicotine. [Unfair
or Deceptive Trade Practice]
White Cloud’s Response to
Attorney General Gansler
• “[M]uch of the information in this area is used
selectively to create propaganda and scare mongering.”
• “I fail to see how ‘more than half’ of the calls to the
centers were about children under the age of five being
‘exposed’ to toxic levels of nicotine and yet not result in
a single (tragic) death.”
• “These phone calls are simply that; phone calls!”
• “I wonder if, by comparison, you have also looked at
the poison calls referencing toothpaste?”
The Current Role of Attorneys General in
the Advertisement and Use of E-Cigarettes
Focus on three issues:
• Misleading Advertising
• Marketing to Minors
• Inherent Dangers in Lack of Quality
Control for Cartridges
Misleading Advertising
Marketing (a comparison)
Marketing (a comparison)
Directed at Children?
MARKETING DIRECTED AT
CHILDREN?
• There are no restrictions currently in place against advertisement
marketed towards children
• Flavorings (blu™ e-cigarettes)
– Cherry Crush
– Piña Colada
– Peach Schnapps
• According to the CDC, over 20% of the middle school students who
reported using e-cigarettes had never previously tried traditional
cigarettes
• Internet Sales:
– How can this be monitored?
– Age ID verification on websites
– Restricted access to social media and marketing at events that
have significant youth following
– Verification on delivery
Inherent Dangers: Quality Control
• No standardized dosage of nicotine
– Amounts range from 4mg/ml to 48 mg/ml
• Absorb nicotine through mere contact with your skin
• Currently no quality control in the additives within the
nicotine solutions
• Reports of nicotine poisonings have doubled across the board
• Child proofing?
• Tamper Resistant?
– Alternative drug delivery device
THE TOBACCO MASTER SETTLEMENT
AGREEMENT (MSA)
• History of the MSA
• Feb. 2014: Senator Tom Harkin, Rep. Henry Waxman and Rep.
Peter Welch write AGs asking them to put e-cigs in the MSA
• Argument that e-cigarettes should fall under it:
– “tobacco product” is a cigarette or smokeless tobacco
product
– A “cigarette” is any product that contains nicotine, is
intended to be heated under ordinary conditions use and
contains tobacco, in any form, that is functional in the
product, which, because of appearance…is likely to be
offered to, or purchased by, consumers as a cigarette.
– Placing e-cigarettes under the MSA keeps them in the
marketplace
– Immediate effect
– Helps create uniformity in the law
THE TOBACCO MASTER SETTLEMENT
AGREEMENT (cont.)
• Benefits of classification under the MSA:
– Prohibits directly or indirectly targeting youth in
advertising/promoting/marketing of e-cigarettes
– Bans the use of cartoon images to promote e-cigarettes
– Prohibits e-cigarette brand-name sponsorship of youth-oriented
events
– Restricts outdoor advertising of e-cigarette products
– Outlaws free e-cigarette gifts without proof of age
– Prohibits payments to promote tobacco products in movies or
other forms of media.