The FDA is considering proposals to regulate e-cigarettes that would discourage their use. The Los Angeles City Council has banned them in public places, and the California Legislature may vote on an anti-"vaping” law this week.

Blanket laws discouraging the use of e-cigarettes are the wrong policy move. E-cigarettes have already shown themselves to be an appealing alternative to many smokers who are trying to quit. Because almost 500,000 Americans die annually from tobacco-related diseases, a lot is at stake.

Most smokers want to quit but typically try and fail, often repeatedly. Some successfully stop by using nicotine gum or a nicotine patch or taking drugs that make smoking unappealing. But for most smokers, these strategies have not worked.

E-cigarettes, although varied in style, all deliver nicotine to the user in a vapor, which can look like cigarette smoke. By vaping, e-cigarette users can get the level of nicotine hit that addicted smokers crave but without the dangers of burned tobacco. To be clear, nicotine is addictive, but it is not the ingredient in cigarettes that makes traditional smoking so lethal — it’s the burned tobacco that kills.


Though e-cigarettes are not harmless, existing evidence makes clear that they are staggeringly less dangerous than regular cigarettes and other burned tobacco products. The British government agency Public Health England reviewed existing studies and estimated that e-cigarettes are about 95% safer than burned tobacco products. Some users have then been able to wean themselves from nicotine altogether, as the level of nicotine in e-cigarettes can readily be controlled and therefore reduced.

By adopting three complementary policy ideas that would encourage rather than discourage e-cigarette use, government — especially the federal government — could nudge many more Americans to quit smoking and eventually save millions of lives.

First, reduce nicotine levels in regular cigarettes. The FDA could (as proposed by scholars such as Larry Gostin, at Georgetown University, and Ken Warner, at the University of Michigan) make regular cigarettes considerably less appealing by insisting that nicotine levels in these cigarettes be systematically reduced, say, by 10% a year over several years. So long as the level is not reduced to zero, the FDA would be acting within its existing authority. With e-cigarettes readily available, people would have an appealing, and safer, alternative.

In addition, Congress should pass a new type of $2-a-pack cigarette tax. Such taxes are normally a hard sell politically. But the game would change if Congress used a different approach modeled after the way today’s unemployment compensation system is funded.


The tax would be forgiven for states that have their own cigarette taxes at $2 a pack or higher. In the face of such an incentive, the approximately two-thirds of states with cigarettes taxes of less than $2 (including a dozen with current rates of less than 75 cents a pack) would be foolish not to boost their tax to at least the $2 level. Their smokers would have to pay the tax in any event, but by acting, the state could keep the revenue, not the feds.

This increase in the price of cigarettes would be greatest in many states with high levels of smokers. Louisiana, Mississippi and Missouri all have high levels of smokers, and they also face serious budget problems. A new cigarette tax would give them a boost in the revenue they need.

It’s true that a substantial increase in cigarette taxes reduces smoking prevalence rates, and therefore, before long the revenue boost diminishes. But with reduced smoking levels, lower claims on state Medicaid programs would follow.

Finally, insurance available under the Affordable Care Act should cover e-cigarettes as a smoking cessation tool. The American Lung Assn. has long pushed, with some success, to have health insurance cover all products and programs that help smokers quit. With a doctor’s certificate, a current smoker might be given low-cost access to e-cigarettes for a trial period of perhaps three or four months. Many would find that sufficient to stop smoking regular cigarettes.


Those who want to make it harder, not easier, to get e-cigarettes seem primarily worried that children and teenagers will vape, and that vaping will become a gateway to traditional smoking. In a multiyear study of 694 teens published Tuesday, six of 16 vapers progressed to cigarette smoking and 65 of the other 678 participants (non-vapers) also starting smoking.

The study is being touted as proof that e-cigarettes are a gateway to smoking, but it’s possible that the six vapers who started smoking would have done so in any case. In any event, the study also shows that many young people who will move on to smoking are not doing so via e-cigarettes. Unstudied were e-cigarette users who would be smokers if e-cigarettes were not available to them.

The right strategy to fight smoking should be “harm reduction.” By simultaneously reducing the nicotine content of regular cigarettes, raising their cost in key states and, at the same time, making e-cigarettes available to smokers nationwide at a modest price at least for a while, large numbers of smokers are likely to respond in ways that existing tobacco control strategies have failed to achieve. That would achieve an enormous public health gain.

Stephen D. Sugarman is a professor at the UC Berkeley School of Law whose specialties include torts and public health.


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