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Regulatory Options for E -Cigarettes 12 nor their safety as cigarette replacements is established .."4 In recent years, litigation between the FDA and e -cigarette manufacturers arising from concerns about their safety and regulatory status resulted in a temporary restriction on the importation of e -cigarettes into the United States.' As a result of a 2010 ruling by the U.S. Court of Appeals for the D.C. Circuit,6 in April 2011 the FDA announced that it will regulate e -cigarettes as tobacco products under the Family Smoking Prevention and Tobacco Control Act? — the federal law granting the FDA the authority to regulate tobacco products — "unless they are marketed for therapeutic purposes, in which case they are regulated as drugs and/or devices.."s As of February 2013, however, the FDA has not yet regulated e -cigarettes as tobacco products. For that reason, it has become more of a priority for many state and local governments to consider regulatory options for electronic cigarettes. Regulatory Gaps & Options Taxation • Regulatory Gap: Many state tax laws define the term "tobacco products" in a way that excludes e -cigarettes. Although the FDA has said it will regulate electronic cigarettes as tobacco products, it is not clear whether every product marketed as an e -cigarette contains tobacco, or even nicotine derived from tobacco.9 • Regulatory Options: The Family Smoking Prevention and Tobacco Control Act (the f Tobacco Control Act) expressly P reserves the authority of state and local governments to levy taxes on tobacco products." Since e -cigarettes area different type of product, containing electronic parts and synthetically -derived ingredients, existing tobacco tax laws may not be well-suited to them." Some states have addressed this issue by clarifying the definition of "tobacco products" in their tax codes so e -cigarettes are considered tobacco products for taxation purposes. 12 Unless the FDA determines that e - cigarettes have genuine therapeutic uses, other states might consider, in the meantime, taxinge-cigarettes in a way that complements their existing cigarette and tobacco product taxes. 3 Coupons, Discounts, & Rebates • Regulatory Gap: Tobacco manufacturers use coupons and other price -related incentives to make Products such as e -cigarettes more attractive to consumers, particularly young people.' Coupons and other price discounts for electronic cigarettes are utilized in the retail environment and discounted e -cigarettes are extensively promoted online. Regulatory Options: Local and state governments could consider restricting or prohibiting the retail redemption of coupons for tobacco products, including e -cigarettes and similar nicotine delivery systems, or restricting other price -related practices in the retail environment, such as payments from e -cigarette manufacturers and distributors to retailers resulting in price discounts; tobacco retailer incentive programs; and retail value- added deals (e.g buy -one -get -one -free offers). 15 Tobacco Control Legal Consortium 875 Summit Avenue, Saint Paul, MN 551053076 www.publichealthlawcenter.org 651.290.7506