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States Far Ahead of FDA in E-Cig Regulations

By Brett Snider, Esq. | Last updated on

The FDA proposed new regulations for e-cigarettes last week, but more than a dozen states have already passed laws to regulate them.

In fact, at least 20 states have already included e-cigs in their smoking bans and regulations for public areas, workplaces, and schools, according to the online legal research service WestlawNext (which, like FindLaw, is owned by Thomson Reuters).

How do these states regulate e-cigarettes? Will they lead the way for accepting the new FDA rules?

E-Cigs Included in Many Indoor Smoking Bans

Much of the popularity of e-cigarettes arguably stems from the "cool" factor of smoking an e-cig without the negative consequences of cigarette smoke. You may have seen celebrities touting them on TV commercials; perhaps you've even seen e-cigarette vendors "smoking" inside your local mall, giving the impression that the devices are somehow outside the laws against smoking inside most businesses.

In many states, this e-cigarette legal loophole is a myth. New Jersey and other states have passed laws specifically targeting e-cigarettes or amending smoking laws to include them. And according to a new survey, nearly half of Americans agree with regulating e-cigarettes like regular cigarettes, and it may be as simple as believing that "smoking is smoking."

Exclude E-Cigs From Smoking Bans?

However, not all states are pushing e-cigs away with legislation; some want to embrace their use over that of traditional cigarettes. In 2011, Wisconsin legislators proposed a bill attempting to protect "vaping" from smoking bans, but the bill failed to pass.

Tennessee's Senate is also considering a bill to clarify that the policies and taxes relating to tobacco products would not apply to "vapor products" such as e-cigarettes. Senate Bill 1698 was introduced in the Volunteer State in January, and is currently in committee.

How Do State Laws Compare to the FDA's Proposed Rules?

States like Tennessee may be upset with the FDA's proposed rules, which on the whole would treat e-cigarettes and other tobacco products the same as regular cigarettes. If e-cigarettes are federally regulated (both in production and marketing) identically to non-electronic cigarettes, it may make little sense to make a distinction on the state level.

The FDA's rules do not speak to allowing e-cigarette smoking or "vaping" indoors or in public places. However, private businesses may use the new rules as an opportunity to amend their existing smoking policies to include e-cigarettes.

Even after the FDA rules become effective, many questions about e-cigarettes will still be left to the states.

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