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Before I even come close to wading into this I have to do the obligatory I’m not a lawyer thing. The information below is based on research of public websites and a number of calls to various insurance information lines and support organizations. In short, do not take a single word of this as gospel. Should you do anything based on this information, you should do it if your own research and support from people that know a lot more than I do.

It’s long been common practice for insurance companies to charge smokers extra for their health coverage. Under the Affordable Healthcare Act (often called simply Obamacare), insurance companies are allowed to charge up to 50% more for coverage of individuals that smoke. This helps make up for the litany of complications smokers are likely to face in the course of their life. This not only includes the increased risk of various cancers, lung and heart disease, and eventual death, but also an increased frequency of illnesses and doctor visits.

Some companies don’t actually charge this premium — using the very fact as a selling point for their coverage. However, odds are smokers will be kicking in extra somewhere or non-smokers will be paying more to make up for their smoking counterparts.

Meanwhile, electronic cigarettes seem to be a bit of a loophole in the system on both sides. Insurance companies may consider e-cig users to be smokers and charge them the same premiums. Without the damage of smoke, this appears more to be an up-charge for the sake of an up-charge.

However, it appears that electronic cigarette users are not obligated to declare their use of electronic cigarettes. To repeat, do not take this as legal advice or as a suggestion of what one should do.

The main smoking-related question that individuals are asked when applying for coverage under Obamacare is something to the tune of In the last 6 months, at any point, have you used tobacco products 4 or more times per week? If the answer is yes, then more specifics will be asked.

At the moment, there appears to be no national, legally-actionable definition of tobacco or tobacco products that includes electronic cigarettes. This is precisely why the FDA is fighting so hard to change the definition of the tobacco products it can regulate to include e-cigs. In the absence of all aspects of tobacco except the nicotine in them (which can be derrived from other sources), it seems possible that a vaper which has avoided all tobacco products for the last 6 months could say he or she has not used tobacco products in that time.

On the other side, because electronic cigarettes are not a recognized form of smoking cessation, it doesn’t seem vapers need to declare that they are currently using a cessation therapy to avoid smoking in the way that they might if using the patch, lozenges, gums, or even drugs like Chantix.

It simply seems individuals are no more required to declare use of electronic cigarettes than they would Cheetos Puffs, Double Stuffed Oreos, or McDonalds French Fries.

However, in the absence of a national level definition of electronic cigarettes as something other than tobacco, insurance companies seem likely to qualify them as tobacco products for the purposes of their own bookkeeping. And why wouldn’t they? It justifies a 50% increased premium on an individual that evidence thus far suggests is not 50% more costly to cover. All they have to do is make sure they actually ask about electronic cigarettes in particular when asking about use of tobacco.

Often fights over definitions are won or lost in the courts of business rather than by government organizations that move slower than molasses on Pluto. If vapers take the fight to insurers that attempt to charge them a premium for being smokers, e-cig could be redefined within the courts long before the FDA ever gets around to sorting out its e-cig affairs.