In the absence of federal regulation of e-cigarettes, states have started to make their own rules, but not without controversy

Reed Saxon / AP John Hartigan, proprietor of Vapeology LA, a store selling electronic cigarettes and related items, takes a puff of an electronic cigarette at his store in Los Angeles on Dec. 4, 2013.

Regulations of electronic cigarettes are expected to be a top priority for states and cities in 2014. But some of the new laws being considered — bans on use in public places like restaurants and bars, and high sin taxes — are based on the assumption that electronic cigarettes, battery powered devices that produce a nicotine vapor, are exactly like the real thing. If it looks like a duck and quacks like a duck, the thinking goes, it must be a duck.

But it isn’t that simple, say e-cigarette makers, and if policy makers overreach, they’ll face a fight with e-cigarette smokers and manufacturers who say it’s irrational to treat electronic cigarettes like regular cigarettes, and that the laws, which might dissuade smokers from switching to a safer product, may even be bad for public health.

“I’m looking forward to federal regulation. But each state doing its own thing in absence of a federal framework, I think is a mistake,” says Miguel Martin, the president of LOGIC Technology, an electronic cigarette maker in New Jersey.

It seems like every week another city or state has a new electronic cigarette rule under consideration. Utah, North Dakota and New Jersey ban using electronic cigarettes in public places like bars and restaurants. New York City, Chicago and Los Angeles are considering similar bans. Maryland’s Prince George’s county, a suburb of Washington, has agreed to hold off on a ban pending the results of a study on the risks. Proponents of such bans say second-hand vapor might be harmful and that electronic cigarettes glamorize smoking at a time when anti-smoking advocates have largely succeeded in stigmatizing it.

Minnesota is the only state that taxes electronic cigarettes (at 95% of their wholesale price), but industry insiders say they expect electronic cigarette taxes to proliferate in 2014. Utah, Oklahoma, and Hawaii have tried and failed to impose taxes on electronic cigarettes. Lawmakers in South Carolina and Oregon have also considered electronic cigarette taxes, making them likely candidates to continue the debate next year.

The flurry of state regulation has started without any guidance from the federal government — the FDA, which missed a deadline to start the regulatory process in October, says it will announce its intention to regulate electronic cigarettes as a tobacco product in December, kicking off a regulatory process that will take months.

E-cigarette makers say the patchwork of state laws without a federal framework will result in an unintelligent approach to electronic cigarettes that could lead to unintended consequences.

LOGIC’s Martin, a former executive for tobacco giant Phillip Morris, says that absent federal regulation, state taxes would punish retailers who check ID and create incentives for people to buy electronic cigarettes over the Internet, where ID isn’t as easily verified. LOGIC prohibits sales to customers under 18. “There’s a knee jerk reaction to tax. It has cigarette in the name, ‘I don’t know what the thing is, let’s treat it like a cigarette.’ What if science turns out to show that there’s a health benefit to using e-cigarettes over cigarettes and you have a financial disincentive to use them?” he says.

Craig Weiss, the CEO of the Arizona-based manufacturer NJOY, agrees. “If you make it just as inconvenient and expensive to smoke an electronic cigarette as a Marlboro, people are going to keep smoking Marlboros. Is that really the unintended consequence they want? To keep them smoking? Because that is what they are doing and we know the consequence of that is people are going to die a painful and early death.”

In response, some advocates of regulation in the public health community say it doesn’t make sense to subject non-smokers to any kind of fine particle pollution, even though there is wide agreement that e-cigarettes are much less toxic than traditional cigarettes.

Stanton Glantz, a professor at the University of California San Francisco medical school and a leading expert on the effects of secondhand tobacco smoke, says electronic cigarette vapor still emits harmful fine particles in the air. “If you look at absolute levels of risk [of electronic cigarettes], they are pretty bad, because a cigarette is just ridiculously toxic and ridiculously polluting,” he said in a September TIME story. “If you go into a bar or casino where there is a lot of smoking, the only way to get the air that polluted outdoors is to be downwind from a large forest fire. If you say an electronic cigarette is only 10% to 20% less polluting than a massive forest fire, that’s not so good.”

State and city regulations are likely to see major push-back from the electronic cigarette industry and e-cigarette smokers, many of whom believe that electronic cigarettes have helped them quit smoking. “If states get this wrong, if they [incorrectly] tax electronic cigarettes, you are going to see a lot of litigation” from e-cigarette companies, says Christian Berkey, CEO and founder of Johnson Creek in Wisconsin, the largest producer of the liquid used in electronic cigarettes. Berkey says that electronic cigarettes have not produced any proven public health costs that justify taxing them the way regular cigarettes are taxed.

States are also likely to face challenges from grassroots protesters and some members of the public health community who’ve become excited about the prospect that electronic cigarettes could provide safer alternative to smoking that is actually popular with smokers. Roughly 1,000 people protested at the Hawaii legislature when it considered a tax on electronic cigarettes in 2012, a measure that eventually failed. And electronic cigarette smokers — many of whom call themselves “vapers”— puffed on their electronic cigarettes at a New York City council hearing to protest a public use ban in December. In a recent op-ed in the New York Times cautioning against over-regulation of electronic cigarettes, professors Amy Fairchild and James Colgrove of Columbia’s Mailman School of Public health wrote: “If e-cigarettes can reduce, even slightly, the blight of six million tobacco-related deaths a year, trying to force them out of sight is counterproductive.”