On April 23, 2015, the Public Health Advocacy Institute submitted the following written comments concerning proposed regulations for electronic cigarettes issued by Massachusetts Attorney General Maura Healey:
April 23, 2015
Amber Villa, Assistant Attorney General
Consumer Protection Division
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
Re: Massachusetts Attorney General Proposed Regulations of E-Cigarettes Retail Sales
Dear Assistant Attorney General Villa:
On behalf of the Public Health Advocacy Institute at Northeastern University School of Law (PHAI), I am writing in response to Attorney General Maura Healey’s
request for comment on the proposed regulation of e-cigarettes sales. We at PHAI are dedicated to protecting and improving public health through law and legal policy. We enthusiastically support the proposed regulations to reduce youth access to e-cigarettes.
The three-fold increase in e-cigarette use among middle and high school age youth from 2011 to 2013 demands a response.  Now a quarter of all high school age children and eight percent of middle school age children use e-cigarettes and do so regularly.  We appear to be watching tobacco become ‘cool again’ among youth, and this time it is e-cigarettes.
This alarming trend sadly is not surprising. E-cigarette advertisements appear everywhere, promoting brands like Blu, which suddenly have become as recognizable as Marlboro and Camel. Additionally, candy and other exotic flavored e-cigarettes are contributing to the growing popularity among youth. Tobacco industry documents discovered through litigation tell us that manufacturers used such flavors in the past to target sales at children.  Today, e-cigarette manufacturers may be doing the same thing with flavors like Cotton Candy, Sweet Tart and even Unicorn Puke.  Unicorn Puke is a mash-up of candy flavors.
PHAI applauds Attorney General Healey’s effort to stop the sale of e-cigarettes to children. Although some municipalities already established similar youth access
protections, many have not.  The thousands of retailers in these municipalities can legally sell to children of any age. Unattended vending machines and self-services displays, which lead to youth acquisition of tobacco products, are allowed. Even online retailers do not need to verify a buyer’s age, if the product is delivered anywhere in these cities and towns. Attorney General Healey’s proposed regulation would stop these retail practices.
The leadership shown by Attorney General Healey also challenges others to join her and develop a more comprehensive public health response to e-cigarette use. Our state legislators, state agencies, and public health partners working at the municipal level must also respond in a coordinated and sustained manner. The e-cigarette industry appears to be acting just like tobacco manufacturers did decades ago. Partly, this similarity can be explained by the fact that many cigarette manufacturers also manufacture e-cigarettes.  Another, perhaps more important reason we appear to be reliving the tobacco industry’s past is because we are letting it happen through our own inaction.
Consider just some of the differences in regulatory oversight. E-cigarette advertisements are on television and cable. Other tobacco products are not because it would be illegal. The 1998 Master Settlement Agreement, which prohibits the use of cartoons in tobacco advertising and tobacco brand sponsorships at youth oriented events, is not applied to e-cigarettes.  Candy and fruit-flavored cigarettes are prohibited,  but exotic flavored e-cigarettes are heavily promoted and sold in Massachusetts. We tax tobacco products to dissuade use and help pay for tobacco prevention programs.  There is no tax on e-cigarettes. We passed smoke-free workplace laws to protect against secondhand smoke exposure and to de-normalize smoking.  Except for a few municipalities,  no such equivalent protection exists for e-cigarette emissions.
Attorney General Healey takes a strong first step in establishing at least some proportionality in e-cigarette regulation compared to other tobacco products. Although initial research suggests that e-cigarettes are a less harmful alternative to traditional cigarettes, scientific research also tells us that e-cigarettes are not safe. Just last week, CDC Director Dr. Thomas Frieden stated that e-cigarettes are not safe, in part, because “research had found that nicotine harms the developing brain.”  In addition to a lifelong addiction to nicotine, exposing the young, developing brain to nicotine acts as a ‘gateway’ to other drug addictions. 
Additionally, e-cigarettes emit other constituents that should raise concerns for the public’s health. Monitoring of e-cigarette emissions has found varying levels of toxins and carcinogens in different brands and product types.  The range is broad. Some brands emit trace amounts of carcinogens, while other e-cigarette products, like refillable tank systems for example, can produce levels of formaldehyde comparable to combusted tobacco products.  Currently, there is no regulation of liquid or gel solution in e-cigarettes or how they are vaporized. Put simply, e-cigarettes are not a cessation product designed to end the harm caused by tobacco use or nicotine addiction.
PHAI would recommend one technical change in the proposed regulation. The regulations should not set “18 years of age” as the minimum sales age. Instead, the proposed regulations should use the minimum sales age set by the Legislature. Currently, that age is 18, but proposed state legislation would raise it to 21.  Several municipalities have already taken this step. 
Christopher Banthin, Esq.,
1 Intentions to Smoke Cigarettes among Never-Smoking U.S. Middle and High School Electronic Cigarette Users, National Youth Tobacco Survey, 2011-13, Nicotine & Tobacco Research, April 2015.
3 United States v. Phillip Morris, Inc., RJ Reynolds Tobacco Co., et al., 449 F.Supp.2d 1 (D.D.C. 2006).
4 Sabrina Tavernise, Use of E-Cigarettes Rises Sharply Among Teenagers Report Says, New York Times, April 17, 2015.
5 Donald Wilson, Municipal Tobacco Control Technical Assistance Program, Mass Municipal Ass’n (March 2015).
6 Big Tobacco Companies are Putting Big Warning Labels on Their E-Cigarettes, Washington Post, Sept. 29, 2014.
7 http://www.naag.org/naag/about_naag/naag-center-for-tobacco-and-public-health.php, visited on April 19, 2015.
8 21 U.S.C. § 387g.
9 Mass Gen Law. Ch 64C.
10 Mass. Gen Law. Ch. 270, Sec. 22.
11 Donald Wilson, Municipal Tobacco Control Technical Assistance Program, Mass Municipal Ass’n (March 2015).
12 Tavernise, supra, n. 4.
13 Eric Kandel, et al., A Molecular Basis for Nicotine as a Gateway Drug, New England Journal of Medicine, Vol. 371, Pp. 932-41 (2014).
14 US Food and Drug Administration. Final Report on FDA Analyses, May 4, 2009, available at http://www.fda.gov/downloads/Drugs/ScienceResearch/UCM173250.pdf
15 Matt Richtel, Some E-Cigarettes Deliver a Puff of Carcinogens, New York Times, May 3, 2014.
16 House Bill 2021, An Act Further Regulating the Sale of Tobacco Products to Teenagers, 189 General Court 2015.
17 Wilson, supra, n. 5.