FDA Move to Regulate E-Cigarettes May Boost Trend to Treat Them Like Tobacco Products

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By Martin Berman-Gorvine  

April 30 --The Food and Drug Administration's proposal to regulate “e-cigarettes” that produce a nicotine-infused vapor rather than smoke could reinforce the trend in workplaces to treat them like other tobacco products, observers say.

The FDA April 24 moved to extend its reach over the tobacco industry to include the $3 billion market for e-cigarettes manufactured by such companies as Lorillard Inc. and Altria Group Inc., and to regulate cigars, too. The proposed rules, if finalized, will limit sales to minors, ban free samples, require nicotine addiction warnings and require passing a review to stay on the market.

Consumer groups have said e-cigarette companies use candy flavors, TV ads and music festival sponsorships to target youth, who more than doubled their use of the products in 2012 from a year earlier, according to the Centers for Disease Control and Prevention.

The FDA is “taking the steps they can and seem to be going as far as they're authorized to,” Helen Darling, the outgoing president and CEO of the National Business Group on Health, said in an April 30 interview with Bloomberg BNA.

Treated Like Tobacco at Most Employers

E-cigarettes are still a relative novelty in most workplaces. In March, the NBGH surveyed its membership about their policies on e-cigarettes, receiving responses from 44 large companies. Darling said 54 percent of the respondents “said they are essentially treating e-cigarettes the same as tobacco, so they can't be used in the workplace or in company-owned vehicles. Thirty-two percent allow them to be used only in designated areas, as with other tobacco products--which they may be required to allow under a collective bargaining agreement.”

Management-side attorney Mark Waterfill, a partner in the Indianapolis office of Benesch, Friedlander, Coplan & Aronoff, said he has not yet received any questions from clients about e-cigarettes. But if the FDA goes ahead with its regulatory plans, the products “will definitely” end up being treated the same as other tobacco products by employers, he told Bloomberg BNA April 30. However, Waterfill noted, “one distinction is that if you're sitting at your desk smoking a cigarette, it creates a foul and offensive odor to those around you, while the manufacturers claim that not to be the case with e-cigarettes.”

Even so, he added, “at this point [employers] are free to treat e-cigarettes any way they want to, or an employer could certainly ban them from the workplace if they so desire.”

Said Darling: “Treating e-cigarettes as tobacco makes a lot of sense in both directions--you can't ban them if you don't ban other tobacco products. But there is a move toward banning tobacco and imposing financial penalties for tobacco use.”


To contact the reporter on this story: Martin Berman-Gorvine in Washington at mbermangorvine@bna.com

To contact the editor responsible for this story: Simon Nadel at snadel@bna.com