No Electronic Cigarettes for Minors In California — For Now

Sales of electronic cigarettes to minors are illegal in California under legislation signed by Gov Arnold Schwarzenegger.

The measure is a follow-up to legislation last year vetoed by the GOP governor that sought to ban all California sales of the battery-powered devices that look like cigarettes and deliver a vaporized liquid to the user

The “smoke” comes in various flavors such as mint, orange, coffee, chocolate, vanilla and strawberry that the author of the legislation, Sen. Ellen Corbett, a San Leandro Democrat, says makes the $40 to $70 devices attractive to minors.

The Electronic Cigarette Association, an industry trade group, says its products are aimed only at smokers of legal age and that flavor preferences are “universal and not age-specific.”

Violations of the ban on selling e-cigarettes to minors carries a $200 fine for a first offense, $500 for a second and a maximum of $1,000 for a third.

The bill, SB 882, takes effect immediately. But it could be pre-empted depending on the outcome of a challenge to federal efforts to regulate e-cigarettes.

Although the vapor expelled by the devices can contain nicotine, e-cigarettes are not tobacco precluding their regulation as such at both the state and federal level.

In July 2009, the Food and Drug Administration issued the results of a laboratory analysis of two types of electronic cigarettes. The analysis found traces of carcinogens and toxic chemicals such as diethylene glycol, which is used in antifreeze.

The third paragraph of the FDA press release announcing the test results reads:

“These products are marketed and sold to young people and are readily available online and in shopping malls. In addition, these products do not contain any health warnings comparable to FDA-approved nicotine replacement products or conventional cigarettes. They are also available in different flavors, such as chocolate and mint, which may appeal to young people.”

In its response to the FDA study, NJOY, an e-cigarette maker, said there have been “no reports of significant adverse health consequences” since its products went on the market in April 2007.

“(The) FDA’s report simply shows that the products contain certain tobacco-specific impurities at much lower levels than conventional cigarettes,” NJOY said.

Smoking Everywhere, another e-cigarette maker, filed a lawsuit in April 2009 in Washington D.C. federal court challenging FDA jurisdiction over its products.

The trial judge agreed with the plaintiffs that electronic cigarettes are alternatives

to cigarettes and don’t fall under the FDA’s jurisdiction.

After appealing the ruling, the FDA convinced a judge to reinstate its right to regulate the importation of electronic cigarettes, pending the case’s outcome.

In vetoing Corbett’s previous bill, SB 400, that proposed banning all California sales of e-cigarettes, Schwarzenegger said:

“While I support restricting access of electronic cigarettes to children under the age of 18, I cannot sign a measure that also declares them a federally regulated drug when the matter is currently being decided through pending litigation.

“Items defined as “tobacco products” are legal for anyone over the age of 18.  If adults want to purchase and consume these products with an understanding of the associated health risks, they should be able to do so unless and until federal law changes the legal status of these tobacco products.”

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