Archive for the ‘Legal Filings’ Category
Wednesday, January 24th, 2018
The U.S. Department of Agriculture (USDA) intends to issue a rule to weaken the school food nutritional requirements of the Healthy, Hunger-Free Kids Act of 2012. The rule would allow flavored milk with added sugar, waive requirement to provide whole grains, and delay reductions of sodium levels in school foods. PHAI submitted a comment to USDA opposing this rollback of healthy eating requirements for school food.
In addition to evidence-based arguments opposing the proposed “flexibilities,” the comment notes our research in collaboration with the Berkeley Media Studies Group from 2016 that examined nutrition and policy proposals in 11 states. We found that two-thirds of relevant legislative or regulatory documents containing at least one policy argument (n=91) argued in favor of the 2012 guidelines. More than half of those arguments raised in favor of the guidelines argued that the guidelines will allow food service directors to provide healthier options or that the guidelines will benefit children’s health. In every state except Oklahoma and Texas, there were more pro-guidelines arguments than anti-guidelines arguments presented.
To learn more about this rollback and to comment (through January 29, 2018) visit this link at Regulations.gov.
This comment was primarily authored by our policy associate, Emily Nink, MS, and edited by Mark Gottlieb, JD.
New Lawsuit Alleges Coca-Cola, American Beverage Association Deceiving Public About Soda-Related Health Problems
Thursday, July 13th, 2017
Despite the scientifically established link between consuming sugar drinks and obesity, type 2 diabetes, and heart disease, the Coca-Cola Company and its trade association, the American Beverage Association, deceive consumers by denying and obscuring soda’s link to those diseases, according to a lawsuit filed today.
Bringing the action filed today in the Superior Court of the District of Columbia are Reverend William H. Lamar IV, pastor of the historic Metropolitan African Methodist Episcopal Church in Washington, DC; Reverend Delman Coates, senior pastor of Mt. Ennon Baptist Church in Clinton, MD; and the Praxis Project, a nonprofit organization focused on building healthier communities. Praxis had brought, but soon withdrew, similar litigation against Coke and the ABA in California pending the addition of the new plaintiffs.
“For far too long, Coca-Cola has been convincing people, including children, that soda is a source of fun and happiness and that it is safe to drink,” said Rev. Coates. “But from my vantage point, Coca-Cola is devastating the African American community by fueling an epidemic of obesity and an epidemic of type 2 diabetes. I visit hospitals and homes, and officiate at funerals. I routinely encounter blindness, loss of limbs, strokes, and even death. Efforts to talk about the role of sugar drinks and advertising in these epidemics, including many of my own efforts—are hampered by the effects of Coca-Cola’s deceptive marketing.”
The lawsuit quotes Coca-Cola executive Katie Bayne’s much-publicized statement that “[t]here is no scientific evidence that connects sugary beverages to obesity” as representative of the kind of deception that Coke and the ABA publicly engage in. Sugar-sweetened beverage consumption is linked scientifically not only to obesity but also to type 2 diabetes and heart disease. The Centers for Disease Control and Prevention, the federal government’s 2015 Dietary Guidelines for Americans, the American Heart Association, the American Medical Association, and numerous other prominent medical and health authorities all acknowledge such links.
Plaintiffs and Andrew Rainer Discuss the Lawsuit
“When industry wanted to sell more cigarettes, it used powerful advertising to make smoking seem glamorous, and it tried to muddy the waters and make it seem as if smoking’s link to lung cancer were in doubt,” said Rev. Lamar. “Soda might not be smoking, but the tactics of the companies are strikingly similar to me: Market heavily. Cast doubt on science. People need and deserve to know the facts about soda consumption. They need to know that the beautiful bodies seen in Coke commercials are not the norm for regular soda drinkers. And they need to know about the possibility of lost limbs, blindness, sexual dysfunction, and premature death.”
Coca-Cola and the ABA’s larger advertising campaign attacks the science while promoting lack of exercise as the primary driver of obesity and related epidemics. The ABA wrote that “the anti-soda campaign misleads people with unsound science,” and that “[A]ll calories are the same regardless of food source,” according to the complaint. James Quincey, Coca-Cola’s new CEO, claimed in a widely publicized interview that “the experts are clear—the academics, government advisors, diabetes associations … a calorie is a calorie.”
Coke also paid health professionals to promote sugar-sweetened beverages on the Internet, including one dietitian blogger who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds,” according to the complaint. The complaint also cites the widely reported secret funding by Coca-Cola—$120 million between 2010 and 2015—to scientists and projects that publicly advanced the proposition that “energy balance” is more important than reducing soda consumption. Meanwhile, advertising campaigns like “Be OK” misleadingly implied that light exercise, such as laughing out loud for 75 seconds, offsets the health effects of Coke consumption, or, in the words of the ABA-funded campaign known as “Mixify,” that some afternoon Frisbee earned players “more” soda.
Coca-Cola’s Deceptive Ad Campaign
Other promotions deceptively advance sugar drinks as a safe form of essential hydration. The complaint again cites Coca-Cola’s Bayne, who claimed that “What our drinks offer is hydration. That’s essential to the human body. We offer great taste and benefits … We don’t believe in empty calories. We believe in hydration.”
“We need to put permanent protections into place that protect kids’ health by shielding them from Coke’s omnipresent and deceptive marketing,” said Praxis Project executive director Xavier Morales. “It seems to me that Coke plays the long game and wants to hook consumers young. But its marketing and advertising are putting too many Americans, especially children and teens of color—who are twice as likely to see an advertisement for soda—on a trajectory that includes obesity, diabetes, and heart disease. These medical conditions kill or maim. When one in every two Latino and African American youth born since 2000 are expected to get diabetes in their lifetime, we need to stand up and take action. Praxis is proud to be bringing this lawsuit.”
In Washington, DC, more residents die each year from complications related to obesity than from AIDS, cancer, and homicides combined, according to the city’s health department.
The plaintiffs are represented by Maia Kats, litigation director of the nonprofit Center for Science in the Public Interest; Andrew Rainer and Mark Gottlieb of the Public Health Advocacy Institute; Daniel B. Edelman of the law firm Katz Marshall and Banks, LLP; and Michael R. Reese of the law firm Reese LLP. The suit seeks an injunction under the District of Columbia’s Consumer Protection Procedures Act, which protects District residents from improper trade practices. Such an injunction would stop Coke and the ABA from engaging in the unfair and deceptive marketing of sugar-sweetened drinks—including any direct or implied claim that the drinks do not promote obesity, type 2 diabetes, or cardiovascular disease.
“For decades, the tobacco industry engaged in a systemic campaign of deception to cast doubt on the science connecting smoking to lung cancer,” said Kats. “Today Coca-Cola and the ABA are conducting their own campaign of deception to hide the science connecting sugar-sweetened beverages to obesity, and obesity-related diseases like diabetes and heart disease. We seek to protect consumers and to stop the deception.”
The Public Health Advocacy Institute’s litigation director Andrew Rainer, who has tried cases against cigarette companies, said, “Coca-Cola and the ABA have taken not just a page but a whole chapter out of Big Tobacco’s playbook for denying scientific truth. They claim there is “no science” linking their products to obesity, type 2 diabetes.”
PHAI Joins Center for Science in the Public Interest in Filing Lawsuit Against Coca-Cola for Deceptive Marketing
Wednesday, January 4th, 2017
BOSTON – Two non-profits that use litigation as a public health strategy have joined forces in a lawsuit accusing the Coca-Cola Company (“Coke”) along with the American Beverage Association (“ABA”) of misleading the public about the science that links heart disease, obesity, and diabetes to consumption of sugary beverages. For years, the Public Health Advocacy Institute at Northeastern University School of Law in Boston and the Center for Science in the Public Interest in Washington, DC relied on civil litigation as a tool to achieve policy change to benefit public health.
Download the Complaint here.
The lawsuit was filed today in federal court in the Northern District of California on behalf of a California non-profit, the Praxis Project, which has had to devote resources to correcting the misleading messages that Coke and the ABA have disseminated. These include spreading the notion that the main cause of obesity is lack of exercise or that “a calorie is a calorie,” regardless of whether it comes from Coke or from kale. The science, in fact, shows that sugary drinks such as Coca-Cola have been found to play a real role in the obesity crisis and that calorie intake is more significant than calorie expenditure in terms of the problems of obesity and overweight. The lawsuit also accuses Coke of failing to comply with its pledge to not market to children. The action alleges violations of California’s Business and Professional Code as well as negligent and intentional breaches of a special duty to protect the consuming public.
The plaintiffs seek a court order to enjoin Coke and ABA from denying the link between sugary drinks and obesity, diabetes, and cardiovascular disease and to stop any marketing to children. They also seek a court order for defendants to disclose and publish all research they have directly or indirectly conducted on the impact of sugary beverages on health and the impact of exercise on obesity vs sugary drink consumption. Furthermore, the plaintiff asks the court to order the defendants to fund a corrective public education campaign and place prominent warnings on their internet sites that consumption of sugary beverages can lead to obesity, diabetes, and cardiovascular disease.
The attorneys for the plaintiff include Maia C. Kats, litigation director of the nonprofit Center for Science in the Public Interest; Andrew Rainer, litigation director of the nonprofit Public Health Advocacy Institute; and Michael R. Reese of the law firm Reese LLP.
PHAI attorney Andrew Rainer considers this lawsuit to be about defending science from manipulation by those who seek to increase profit at the expense of public health. Rainer says, “the Public Health Advocacy Institute has joined in this complaint in an effort to prevent the distortion of science for corporate gain. Just as the tobacco industry manipulated and distorted science for decades to deny the dangers and addictiveness of cigarettes, and the oil industry works to systematically distort science to deny climate change, Coca Cola and the American Beverage Association are engaged in a campaign to deny the established science linking sugar-sweetened beverages to obesity and diabetes.”
Mark Gottlieb, executive director of the Public Health Advocacy Institute, characterizes this filing as, “the tip of the iceberg when it comes to purveyors of sugar-added products seeking to shift all responsibility for health harms to their consumers. Coke pays dietitians to tell consumers things like drinking coke can be a healthy snack and pays scientists to deny that sugary drinks are linked to obesity and then suggests that the main cause of obesity and related disease is lack of exercise. The hypocrisy of suggesting to consumers that burning calories through laughing can offset the harmful effects of drinking soda is no laughing matter. And, yes, Coke really suggested that.”
PHAI’s partner, the Center for Science in the Public Interest included the following bullet points from the complaint in its press release.
- Coca-Cola’s senior vice president, Katie Bayne, claims that “[t]here is no scientific evidence that connects sugary beverages to obesity.”
- “There is no unique link between soda consumption and obesity,” claims a post on the ABA’s website.
- “Simply put, it is wrong to say beverages cause disease,” the ABA stated in another release.
- Coke’s incoming CEO, James Quincey, equated sugar-sweetened beverages to any other calories, dismissing their unique contribution to the obesity epidemic by asserting such beverages contribute only two percent of calories overall.
- Coke also paid health professionals to promote sugar-sweetened beverages, including one dietitian who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds.”
The Public Health Advocacy Institute set up its Center for Public Health Litigation in 2014 in order to hold responsible corporate interests that harm public health and defend policies that protect public health.
Tuesday, May 24th, 2016
On May 23, 2016, the widow and children of baseball great Tony Gwynn filed a wrongful death lawsuit against Altria Group alleging that the manufacturers of Skoal smokeless tobacco’s negligence, fraud, defective design, and failure-to-warn caused the death of the Hall of Famer in 2014.
Richard Daynard, PHAI’s president and University Distinguished Professor of Law at Northeastern University, discussed the case in the New York Times and also on ESPN along with Neil Romano of the National Spit Tobacco Education project.
Tuesday, January 26th, 2016
Massachusetts attorney general, Maura Healey, has proposed regulations to protect consumers from deceptive practices of daily fantasy sports operators in Massachusetts. These include provisions to prevent youth access, limit monthly betting, and prevent professional players from using special tools to dramatically improve their chances of winning.
The Public Health Advocacy Institute previously argued to Ms. Healey that daily fantasy sports is illegal under Massachusetts law. At this time, 10 states have taken that position. Rather than take that approach, General Healey has staked out a moderate position of permitting the games while protecting consumers. We argue that some of the most important protections in the proposed regulations may be impossible to effectively enforce. Were it enforced, we argue, the industry’s business model would fail because it is built on practices that are unfair to the consumer.
Download PHAI’s submission here.
Tuesday, January 19th, 2016
The Public Health Advocacy Institute submitted comments to a proposed rule by the U.S. Department of Housing and Urban Development (“HUD”) to make its public housing smoke-free. The proposed rule would affect 1.1 million households, but leave 3.4 million other HUD-funded households unprotected. These include the agency’s tenant-based and project-based rental assistance.
PHAI argues that there is are several ways that HUD could expand the proposed protections:
- HUD maintains significant control over the development and operation of many mix financed properties, in part, through the Housing Assistance Payment Contracts. HUD has a legal right to change these contracts during the renewal process. Going smoke-free could simply become part of the eligibility requirements, for example, under the all HAP contract renewals going forward. Just like it currently prohibits marijuana use in all the housing it finances, HUD could require a smoke-free environment, too.
- There is widespread support for smoke-free policies among owners and property management companies of mix-financed, affordable properties. In Massachusetts, some of the leading management companies of mixed financed affordable properties have made many, and in some cases all, of their properties smoke-free. Examples include Beacon Communities, Peabody Properties, and Corcoran Management.
- Surveys show that residents who are eligible for affordable housing prefer a smoke-free building, despite the high smoking rates in affordable housing.
- Smoke-free rules reduce maintenance costs, which would benefit the private owners and funders of affordable housing.
- The health and safety risk to residents exposed to drifting secondhand smoke is the same regardless of whether the resident lives in public housing or another type of affordable housing.
- Requiring smoke-free buildings for the use of tenant-based assistance would cause approximately 700,000 landlords to go smoke-free. This change would benefit all residents living at these properties, not just the voucher holders.
Download our comments here.
PHAI operates the Commonwealth of Massachusetts’s Smokefree Housing Program as well as the Public Health and Tobacco Policy Center, which provides services, including smoke-free housing legal and policy technical assistance, to entities funded by the New York State Bureau of Tobacco Control.
After Settlement, PHAI Continues Commitment to Ending Youth Access to MA Lottery Ticket Vending Machines
Tuesday, October 6th, 2015
FOR IMMEDIATE RELEASE
Contact: Mark Gottlieb at (617) 373-2206
As part of its mission to end youth access to lottery ticket vending machines in Massachusetts, the Public Health Advocacy Institute (PHAI) announced today that it has settled a lawsuit with Star Markets.
In March, PHAI, a non-profit organization based at Northeastern University, brought suit against the supermarket chain in the Massachusetts Superior Court on behalf of the Stop Predatory Gambling Foundation and Cambridge City Councilor Craig Kelley, who alleged that his teenage son had been able to use lottery ticket vending machines at two Star Market stores.
Under the settlement, Star Markets commits to using an age verification device that the Massachusetts Lottery Commission recently installed on all lottery ticket vending machines in Star Markets’ Massachusetts stores. The device prohibits a person from using the vending machine until a driver’s license or government-issued identification card demonstrating that the user is at least 18-years-old is scanned.
Plaintiff Councilor Kelley observed, “My son and I are very happy to have been part of this effort to protect children in Cambridge and throughout Massachusetts.”
Andrew Rainer, Litigation Director of PHAI, applauded Star Markets for ensuring that the vending machines in its stores are not used by children. “Unfortunately,” he noted, “there are still almost 1,200 older lottery ticket machines in the state that don’t yet have the age-verification technology,” He continued by noting that “some of those machines are located in kid-friendly locations, like bowling alleys and convenience stores.”
Monday, September 21st, 2015
In March, the non-profit Public Health Advocacy Institute (“PHAI”) announced that it had formed a center to bring important public health litigation, and had hired a former Assistant Attorney General to oversee this litigation in the Massachusetts courts. Today, PHAI, which is based at Northeastern University, announced the filing of its latest suit, and also the formation of a strategic alliance with a group of prominent Boston lawyers to pursue important public health cases, including cases against the tobacco industry on behalf of the families of former smokers who have suffered devastating disease from cigarettes.
“We are so pleased to be working with this outstanding group of lawyers to help some of tobacco’s victims in Massachusetts,” said Andrew Rainer, PHAI’s Litigation Director and Director of the Center for Public Health Litigation. Working together with PHAI will be:
- Lisa Arrowood, Kevin Peters and Jed DeWick of Arrowood Peters, LLP
- Sam Perkins of Brody, Hardoon, Perkins & Kesten, LLP
- Neil Leifer, of Neil T. Leifer, LLC
- Leo Boyle, Michael Bogdanow and Valerie Yarashus of Meehan, Boyle, Black & Bogdanow, PC
PHAI’s latest suit, filed today in Middlesex Superior Court in Woburn together with Perkins and Brody, Hardoon, Perkins & Kesten, LLC, is brought on behalf of Linda Troupe and her husband Carleton against R.J. Reynolds Tobacco Company of Winston-Salem, North Carolina, and Donelan’s Supermarkets, Inc. of Littleton, Massachusetts. Mrs. Troupe, who smoked Winston and Kool cigarettes for over 35 years, was diagnosed in 2013 with throat cancer. The suit alleges that, in order to treat Mrs. Troupe’s cancer, doctors had to remove her larynx, and she has lost most of her ability to speak with her four children and eleven grandchildren.
Arrowood, Peters, DeWick and Leifer will be working with PHAI on two cases previously filed in the Middlesex Court — the first brought for the family of James Flavin, Jr., a former executive of Filene’s and Staples, who died of lung cancer in 2012 after smoking Newport cigarettes for over 40 years, and the second brought for Patricia Greene, a Newton realtor, who was diagnosed with lung cancer in 2013, even though she had stopped smoking Marlboro cigarettes 25 years earlier.
Arrowood is the current President of the Boston Bar Association, and a fellow of the American College of Trial Lawyers. Perkins is a founding partner of Brody, Hardoon, Perkins & Kesten, and a previous Lawyer of the Year. Leifer, a former partner of Thornton & Naumes (now the Thornton firm), represented the Commonwealth of Massachusetts in its successful litigation against the tobacco industry to recover the health care costs incurred by the state in caring for residents harmed by smoking. Boyle and Yarashus are past Presidents of the Massachusetts Bar Association. Boyle also served as President of the Association of Trial Lawyers of America (now the American Association for Justice), and is a fellow of the American College of Trial Lawyers.
Wednesday, August 5th, 2015
In 2014 and 2015, the Public Health Advocacy Institute (PHAI) conducted testing to determine whether kids could purchase lottery tickets from the vending machines located in a number of area supermarkets. At markets in Cambridge, Somerville, and Arlington, Massachusetts, a teenage tester was easily able to purchase lottery tickets in every attempt.
Massachusetts law expressly prohibits the sale of lottery tickets to “any person under age eighteen.” Yet the Massachusetts Council on Compulsive Gambling reports that over two-thirds of teenage boys (aged 14-17) have gambled in the past year, and over half of teenage girls have done so. About a third of these children gambled by playing lottery games.
On March 10, 2015, PHAI sent Stop & Shop a legal demand under Massachusetts’ consumer protection law, on behalf of the father of the teenage purchaser, Cambridge City Councilor Craig Kelley, and on behalf of the national non-profit Stop Predatory Gambling Foundation, seeking steps to prevent children from using the lottery ticket vending machines in the company’s stores. According to the demand letter, selling the tickets to minors is an unfair and deceptive sales practice prohibited by law.
The action drew media attention and led to an editorial in the Boston Globe urging that the problem be addressed. Representatives from Stop & Shop responded by working with the Massachusetts Lottery Commission to activate drivers’ license scanners in the lottery ticket machines, which operate to confirm that a lottery ticket purchaser is at least 18 years old before the machine will vend a ticket. Stop & Shop informed PHAI last week that all of its lottery ticket vending machines would have these protections in place by the end of July, 2015.
PHAI staff spot checked Stop & Shop machines in 3 counties and found that its machines will, in fact, not operate without first scanning an adult driver’s license.
Cambridge City Councilor Kelley said he was pleased to see some progress made. “It’s a real problem,” Kelley said. “As a father and as a city councilor, I was truly shocked at how easy it was for a kid to buy tickets from these machines.”
Mark Gottlieb, executive director of PHAI, noted that “While Stop & Shop’s efforts to quickly address the problem are laudable, the vast majority of lottery ticket vending machines in the state don’t have driver’s license scanners. This includes many places like bowling alleys and convenience stores that are frequented by kids.” Gottlieb added that “we will continue to work to prevent sales of scratch tickets to kids through vending machines as a public health policy measure.”
Friday, May 1st, 2015
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.