Hawaii AG joins other AGs urging FDA regulation of e-cigarettes

Emphasizing the need for immediate regulatory oversight of electronic cigarettes also known as e-cigarettes, Attorney General David Louie urged the U.S. Food and Drug Administration (“FDA”) to place restrictions on the advertising and ingredients of the popular, highly-addictive product, and to prohibit its sale to minors.

In a bipartisan letter co-sponsored by Massachusetts Attorney General Martha Coakley and Ohio Attorney General Mike DeWine, and joined by 38 other Attorneys General, AG Louie urges the FDA to take all available measures to regulate e-cigarettes as “tobacco products” under the Tobacco Control Act. E-cigarettes, an increasingly widespread product that is growing rapidly among both youth and adults, are battery operated products that heat liquid nicotine derived from tobacco plants, into a vapor that is inhaled by the user.

State Attorneys General have fought for years to protect people from the dangers of tobacco products. In 1998, the Attorneys General of 52 states and territories signed a landmark agreement with the four largest tobacco companies in the United States to recover billions of dollars in costs associated with smoking-related illnesses and to restrict cigarette advertising to prevent youth smoking.

Unlike traditional tobacco products, there are no federal age restrictions that would prevent children from obtaining e-cigarettes. Noting the growing use of e-cigarettes and the growing prevalence of advertising, the letter highlights the need to protect youth from becoming addicted to nicotine through these new products. A survey conducted by the Center for Disease Control and Prevention shows that from 2011 to 2012, the percentages of youth who have tried or currently use e-cigarettes have roughly doubled.

The survey estimates that nearly 1.8 million middle and high school students tried e-cigarettes in 2012. According to the U.S. Surgeon General, nicotine is highly addictive, has immediate bio-chemical effects on the brain and body at any dosage, and is toxic in high doses.

The lack of regulation of e-cigarettes puts youth at risk of developing a lifelong addiction to a potentially dangerous product that could also act as a gateway to using other tobacco products. E-cigarette manufacturers are using marketing tactics similar to those big tobacco used in the last 50 to 100 years to attract new smokers.

Celebrity endorsements, television advertising, cartoons, fruit flavors, attractive packaging and cheap prices all serve to encourage youth consumption of these dangerous products. Additionally, some manufacturers’ marketing campaigns claim that these products do not contain the same level of toxins and carcinogens found in traditional cigarettes, cigars, and other tobacco products.

These claims imply that e-cigarettes are a safe alternative to smoking, when in fact nicotine is highly addictive, the health effects of e-cigarettes have not been adequately studied, the ingredients are not regulated, and may still contain carcinogens.

The lack of regulation puts the public at risk because users of e-cigarettes are inhaling unknown chemicals with unknown effects. Hawaii has taken an active role in the fight against tobacco use by its youth.

In 2013, the Hawaii State Legislature passed Act 227, which expressly prohibits the sale of e-cigarettes to persons under the age of 18 years.

Notwithstanding Hawaii’s proactive approach, Attorney General Louie believes that participating in the nationwide effort to regulate e-cigarettes is critical to ensuring that Hawaii’s youth are protected from manufacturers’ efforts to make e-cigarettes attractive and easily accessible.

The letter was co-sponsored by Attorney General Louie, along with Massachusetts Attorney General Martha Coakley and Ohio Attorney General Mike DeWine. The other states joining the letter to the FDA are Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Guam, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virgin Islands, Washington, and Wyoming.

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Act 227: §709-908 Tobacco[;] and electronic smoking devices prohibited; minors. (1) It shall be unlawful to sell or furnish tobacco in any shape or form, including chewing tobacco and snuff, or an electronic smoking device to a minor under eighteen years of age.
(2) Signs using the statement, “The sale of tobacco products or electronic smoking devices to persons under eighteen is prohibited”, shall be posted on or near any vending machine in letters at least one-half inch high and at or near the point of sale of any other location where tobacco products or electronic smoking devices are sold in letters at least one-half inch high.
(3) It shall be unlawful for a minor under eighteen years of age to purchase any tobacco product, as described under subsection (1)[.], or an electronic smoking device, as described under subsection (5). This provision does not apply if a person under the age of eighteen, with parental authorization, is participating in a controlled purchase as part of a law enforcement activity or a study authorized by the department of health under the supervision of law enforcement to determine the level of incidence of tobacco or electronic smoking devices sales to minors.
(4) Any person who violates subsection (1) or (2), or both, shall be fined $500 for the first offense. Any subsequent offenses shall subject the person to a fine not less than $500 nor more than $2,000. Any minor under eighteen years of age who violates subsection (3) shall be fined $10 for the first offense. Any subsequent offense shall subject the violator to a fine of $50, no part of which shall be suspended, or the person shall be required to perform not less than forty-eight hours nor more than seventy-two hours of community service during hours when the person is not employed and is not attending school.
(5) For the purposes of this section:
“Electronic smoking device” means any electronic product that can be used to simulate smoking in the delivery of nicotine or other substances to the person inhaling from the device, including but not limited to an electronic cigarette, electronic cigar, electronic cigarillo, or electronic pipe, and any cartridge or other component of the device or related product.”

§328J– Placement of cigarettes and tobacco products. (a) Except as otherwise provided under this section, a retailer may sell cigarettes, smokeless tobacco, and all other tobacco products only in a direct, face-to-face exchange between the retailer and the consumer. Examples of methods of sale that are not permitted include vending machines and self-service displays.
(b) This section shall not apply to:
(1) A duty-free sales enterprise selling duty-free merchandise in accordance with the provisions of Title 19 United States Code section 1555(b), and any implementing regulations; and
(2) Retail tobacco stores, bars, or any other establishment for which the minimum age for admission is eighteen.

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