| April 8, 2014
Considerations for determining a policy for e-cigarettes in Oklahoma
The increase in use of “e-cigarettes” or “vaping” products has resulted in discussions by policymakers of how to determine the level of regulation for such products. As policymakers consider a course of action, some perspectives regarding “e-cigs,” “vaping,” and tobacco-harm reduction must be thoroughly analyzed.
Myth: e-cigarettes contain tobacco
According to researchers (including a former Surgeon General of the United States, whose letter is referenced below), no e-cigarettes contain tobacco, tobacco leaves, etc. Some e-cigs contain nicotine that has been extracted from a tobacco plant, some contain non-tobacco, man-made synthetic nicotine, and some contain no nicotine at all. (The FDA, TSET, Health Department, OHCA, and others approve of nicotine use, which suggests that its potential for harm can be overstated.) Saying that all e-cigs contain tobacco is like saying that all sweets are canes, because some sweets have sugar, and sugar is derived from sugar cane.
Myth: e-cigarettes contain formaldehyde and other “toxins”
A number of state bureaucrats and those opposed to e-cigs or vaping products have implied that these products are highly toxic, charging “these products contain formaldehyde and other toxins.” These are misleading charges that obscure the truth about e-cigarettes. The basis for this claim comes from a review of studies conducted by the German Cancer Research Center that subsequently has been questioned by a number of researchers. As was noted by E-cigarette Research Advocates:
Formaldehyde is a natural substance, present in the environment and produced by the metabolism of the human organism. It is exhaled by healthy humans, and I am sure none has ever stated that being close to another person increases your risk of cancer.
Regarding the presence of other “toxins,” several of these substances which are often mentioned by opponents are present in other products that humans come in contact with on a regular basis, including the air we breathe daily. Scientific research shows that when found in vapor, they are in trace amounts that do not present a hazard. The U.S. Government has determined the levels of these substances which are acceptable and not a health threat, even with regular exposure, and everything found in vapor is far below that level of concern. For instance, nicotine levels would need to multiply by 20,000 times to reach the threshold for concern listed by OSHA for everyday regular exposure. The “alarm” sounded by opponents of these products has proved once again misleading at best.
Finally, concerning toxins, it is interesting to note that health officials are not forthright about the toxins and side effects of pharmaceutical products that the state distributes for tobacco cessation. For example, Oklahoma health officials don’t run commercials about the side effects of Chantix, which include hyperventilation, hallucinations, depression, and even thoughts of killing oneself.
Myth: “e-cigarette manufacturers are just marketing to children”
We have heard this claim made many times before, but most often it related to advertising efforts generated from decades ago, when people erroneously thought there was no harm from combustible cigarettes. A number of national experts have disputed this claim. Flavoring something does not mean that it is “marketed to kids.” I enjoy a host of flavors, including grape, cherry, and orange popsicles. Appreciation for flavors is something common for adults. Just because e-cigarettes are in flavors does not mean this is for the purpose of luring children. In fact, the desirable flavors for adults is part of what successfully lures adult smokers away from their longstanding addiction to deadly combustible tobacco cigarettes and keeps them from going back.
And even if a small number of bad actors (out of a large number of good actors) are marketing to kids, it is not wise, sound policy or the free-market perspective to enact burdensome regulations that restrict a product from being sold to those who justifiably can purchase such products because of a few bad actors. Policy proposals like a minimum age law, possibly simple registration, etc., are common sense. But bans are not logical. The evidence shows that risks from non-combustible use of tobacco or nicotine products are drastically lower (very small for the user). No research suggests a “secondhand” smoke experience with e-cigarettes for the atmosphere or those surrounding the smoker.
Those who tried to stop horizontal drilling and hydraulic fracturing used the same tactics as those opposed to alternatives to traditional tobacco products. Regarding horizontal drilling and hydraulic fracturing, opponents said that deadly chemicals were being used, water sources regularly were being contaminated, etc. But Oklahoma was actually a leader in showing that this technology had been used safely since the 1950s, and that only in the case of a bad actor were there problems. Even the EPA ended up conceding that, based on their review, they couldn’t find anything to support such charges.
Myth: any tobacco use can or will result in negative health outcomes
This and similar statements are often cited. But a person who has one cigar occasionally (say a few times a year for weddings) is not anywhere near the same risk (can actually have no bad health outcomes at all) as a habitual smoker, as evidenced by the significantly higher life insurance premiums the habitual smoker faces. Even greater though is the evidence that the overwhelming problem with tobacco consumption is when it is used in a combustible product. Once combustion of tobacco is removed, risk factors of tobacco use declines between 98 and 99 percent. Combustion of any organic material creates thousands of deadly chemicals, whether that is burning leaves, burning tobacco, or burning charcoal at a backyard barbeque.
This misunderstanding about the difference between combustion and tobacco, itself, has led to some bureaucrats errantly asserting that given the state’s financial burden to bear the cost of health benefits, the state and local governments should ensure that employees don’t participate in unhealthy behaviors during work hours or on any government property, including outdoor parks and government roads. That is unfortunate and misinformed public policy. What’s worse is extending this bad public policy to a product that does not even contain tobacco and involves no combustion nor any dangerous levels of chemicals of any kind.
Given the body of research that suggests the promise of e-cigarettes and other tobacco-harm-reduction efforts, a great case can be made that e-cigs don’t worsen a person’s health, particularly in a smoker who decreases his or her use of combustible products and replaces them with non-combustible products. Also, it would seem that targeting this “unhealthy” behavior would be selective. For example, the Oklahoma Employees Insurance and Benefits Board notes that obesity and overweight status is a challenge for the government employee pool. Will the state and local governments ban employees from eating all non-healthy foods on state and local government property? Sugar is both addictive and contributes to our nation’s epidemic of obesity and diabetes. Should there be a ban on consuming sweet tea and cinnamon rolls on state property? This sort of reasoning would leave Oklahoma’s policy perspective looking a lot like New York City under the direction of Michael Bloomberg, with its ban on certain sized soft drinks and other foods.
Nationally and locally there has been a rush to adopt burdensome regulations on e-cigarettes. But this is a very complex issue. Before the rush to judgment declaring e-cigarettes universally dangerous and banning them on all property, when there is a lot of evidence that they incur much lower risk than any combustible tobacco products, policymakers and state officials should proceed objectively with great and unbiased care before making a policy consideration.
Some of the major advocates of the burdensome approach to e-cigarettes, non-combustible tobacco, and other products have motivations other than health. Their employment, the non-profit industry that benefits from donations to suppress e-cigarettes, the more than $291 million annually in tax revenue from traditional tobacco products that goes to some of their favored government programs, and pharmaceutical companies that make patches and gum (which now have direct competition from a free-market consumer solution) all have an interest that must be carefully considered and evaluated as well.
OCPA has addressed another alarming concern regarding some Oklahoma officials’ opposition to e-cigarettes and non-combustible forms of tobacco. In a blog post in November 2012, “From spending to performance to tobacco, time for better transparency,” OCPA demonstrated that Oklahoma officials who are supposed to be unbiased and present factual information are doing just the opposite. Some state officials are:
[O]pposed to any efforts to be more transparent about the difference between the risks for smoking or non-smoking tobacco products. …
Amending state information regarding tobacco use or smoking to more accurately disclose to citizens the risk associated with various products is only reasonable (current state information inaccurately portrays no difference). Such an action would be no different than efforts to educate citizens to use seatbelts, “don’t drink and drive,” avoid burning on windy days, and a host of other efforts to make citizens aware of risks associated with various activities.
Some of these same officials have said that Oklahoma does not have the expertise to regulate and evaluate tobacco harm reduction methods and products and that we should just ban them until guidance is given by the federal government. This position doesn’t fit Oklahoma, given how strong (and rightly so) the governor, attorney general, and state lawmakers are when it comes to not being cowed by the edicts, intrusion, and one-size-fits-none approach of the federal government.
Oklahoma has knowledgeable experts and well-meaning people on both sides of the issue. One such expert is Oklahoma’s own Theodore L. Wagener, Ph.D., an assistant professor of General and Community Pediatrics at the University of Oklahoma Health Sciences Center. Dr. Wagener is also an Oklahoma TSET Research Scholar.
Dr. Wagener’s research includes a study that found no pulmonary lung function change in subjects using e-cigarettes. Dr. Wagener also studied the mythical “gateway effect” that opponents of the products claim is the real danger in that they claim young people who experiment with vapor products get hooked and later move on to smoking deadly real tobacco cigarettes. His research found that this was not the case. In fact, the studies on youth use of e-cigarettes appear not to suggest anything (also here) at all, and that youth that currently use e-cigs were already smoking traditional cigarettes. In essence, if there is a gateway effect here, it is one directional: the products may be a gateway away from deadly cigarettes for our young people and adults alike.
State spending benefits significantly from use of traditional tobacco products, especially combustible cigarettes
Some bureaucrats who are advocates of imposing onerous burdens and restrictions on e-cigs and other alternatives have attempted to dismiss how much government spending and some of their favored programs benefit from Oklahomans smoking more harmful tobacco products. Since fiscal year (FY) 2003, the state of Oklahoma has collected more than $2.4 billion in cigarette, tobacco, and compact taxes. These taxes generated $291 million in FY-2013. Cigarette taxes alone in FY-2013 totaled $210 million. The Tobacco Settlement Endowment Trust received $85 million in payouts from the tobacco industry alone in FY-2013, and by the time the payments are complete, expects to receive over $2 billion in payments. Given this significant source of revenue to the state, state bureaucrats attempting to regulate e-cigs and other combustible tobacco alternatives have a direct conflict of interest. E-cigs and vaping alternatives are currently assessed a state sales tax of 4.5 percent, just like most other goods, and this rate is far lower than the existing excise tax assessed on traditional tobacco products. A sharp decline in use of traditional tobacco products means a sharp decline in revenue for bureaucrats to spend.
On November 19, 2012, in an Oklahoma House of Representatives interim study, “State Agency Loss of Federal Funding Contingency Plans,” Mike Fogarty, then CEO of the Oklahoma Health Care Authority, testified to the heavy dependence of the state on revenue from taxes on traditional tobacco products. In response to a question from a participant in the study about whether or not a significant decline in tax revenue had transpired with the heavy push to reduce tobacco use, Mike Fogarty responded:
No … We’d hope that fewer people would buy and smoke cigarettes, and we are actually often quoted as saying, we need people to go buy cigarettes, we just don’t want them to smoke, because we are dependent on the revenue [taxes on tobacco products]. But the fact of the matter is that tax [taxes on tobacco products] has not gone down. We along with our partner agencies the Health Department and others would like to see cigarette purchasing go to zero, but if it did, we would be here talking about the loss of state revenue…[emphasis added].
As evidenced by Mr. Fogarty’s comments and state tax collections, state government has a severe addiction to traditional tobacco products.
Oklahoma has a high rate of smokers using combustible tobacco products
Because Oklahoma has so many cigarette smokers, demonizing and banning successful or potentially successful tobacco-harm-reduction alternatives could have a devastating and deadly impact. The evidence is strong, even from tobacco opponents, that e-cigarettes are significantly less risky, and that the greatest risk is combustion. Oklahoma actually has an opportunity by encouraging successful alternatives and working to see better reduction in the use of combustible tobacco products. The real risk to Oklahomans is in creating heavy-handed regulation or taxation that reduces variety, accessibility, and affordability of these alternative products, as this removes the incentive to our smokers to finally make a switch to a safer delivery system for their relatively harmless nicotine addiction.
OCPA policy recommendations
- We can and should work together to develop common-sense solutions that consider proposals such as the need to deter youth access, without criminalizing and demonizing a product that is helping many citizens to cease using combustible products. Polling suggests that the public is looking for common sense and views e-cigarettes and vaping products as less risky. Oklahoma can develop a successful policy regarding e-cigarettes and tobacco harm reduction efforts, without inviting more intrusion from the federal government and without increasing taxes in any way.
- State agencies and bureaucrats should cease efforts to influence, reward, induce, or participate through granting or by any other means in efforts to further burden in any way the use of e-cigs, vaping, and other alternatives to combustible tobacco use.
- State agencies and bureaucrats should cease their current practice of generally referring to all tobacco and nicotine use as posing the same risk to the user. The current practice of leading citizens to believe that different forms of tobacco and nicotine use have the same level of risk is dishonest and inappropriate for state agencies and bureaucrats who have a duty to serve the public in an unbiased manner. State agencies and bureaucrats should update immediately all forms of communication regarding tobacco product use and alternatives so they accurately report to the public the differing use and risk of the various products, so that taxpayers are not underwriting a state-sponsored misinformation campaign that may be encouraging smokers to continue to smoke.
- The state should not increase taxes in any form on e-cigarettes or other vaping products, and should not amend the definition of tobacco products in such a way that would subject the products to excise taxes or the myriad of tobacco regulations. There is a significant push by those who benefit from the billions in tax revenue that could be provided by such a tax increase, but such an effort is the wrong action for Oklahoma.
- The state should resist and stop bureaucrats’ current efforts to define e-cigarettes, vaping and other alternatives to traditional tobacco products as a tobacco product. This includes bureaucrats’ attempts to amend current statutory provisions defining traditional tobacco products, and include e-cigarettes, vaping and other alternatives to traditional tobacco products as part of the definition of some form of tobacco product. These attempts by bureaucrats are back-door attempts to allow increased burdens, taxes and regulations on alternatives to traditional tobacco products and their efforts are harming law abiding Oklahomans.
- The state and policymakers should implement a policy that protects the current statutory regulations and tax treatment of e-cigarettes, vaping and other alternatives to traditional tobacco products, and prevent further actions against these products by state bureaucrats that are not mandated specifically by legislatively enacted state law.
- The state should consider the positive effects to Oklahomans of moving to a risk-based taxation structure for the various traditional tobacco products the state currently taxes by a specific excise tax.
Finally, all policymakers should review this well-researched letter from Dr. Richard Carmona, the 17th Surgeon General of the United States, which he submitted to every New York City Council member before they mistakenly passed their e-cigarette ban. His experience and passion for reducing tobacco use are difficult to match. His story of how he lost his parents to illness compounded by combustible tobacco use is especially powerful.