Several vaping devices on a table

E-Cigarette Laws that Work for Everyone

By Daniel Aaron

The Trump Administration has retreated from proposed tobacco regulations that experts generally agree would benefit public health. The regulations would have included a ban on flavored e-cigarettes, a favorite of children who use e-cigarettes. Currently millions of youth are estimated to be addicted to e-cigarettes.

The rules also could have reduced nicotine in cigarettes to non-addictive levels. Nicotine is the addicting substance largely responsible for continued smoking. If nicotine were “decoupled” from smoking, smokers might turn to other sources of nicotine, rather than continuing to smoke. Smoking is the leading cause of preventable death in the U.S., killing about 500,000 Americans each year, or just about the number of Americans who died in World War I and World War II combined.

Part of the difficulty in regulating e-cigarettes is that, unlike cigarettes, they offer benefits and harms that differ across generations. This concern is called intergenerational equity. How can a solution be crafted that serves all Americans?



On the one hand, youth use of e-cigarettes is mushrooming, and in 2019, 27.5% of all high school students vaped, compared with 11.7% in 2017. The tobacco control group Truth Initiative has set up a text-based e-cigarette cessation program for youth, which has drawn more than 31,000 signups. Teenagers have shared near-death stories from vaping as well as their struggles with e-cigarette addiction. The New York Times told the story of 17-year-old Matt Murphy who experienced “love at first puff”:

A skeptical Matt Murphy saw his first Juul at a high school party in the summer of 2016 . . . . Everyone knew better than to smoke cigarettes. But a few were amusing themselves by blowing voluptuous clouds with clunky vapes that had been around since middle school. This Juul looked puny in comparison. Just try it, his friend urged. It’s awesome. Matt, 17, drew a pleasing, minty moistness into his mouth. Then he held it, kicked it to the back of his throat and let it balloon his lungs. Blinking in astonishment at the euphoric power-punch of the nicotine, he felt it — what he would later refer to as ‘the head rush.’ . . . So began a toxic relationship with an e-cigarette that would, over the next two years, develop into a painful nicotine addiction that drained his savings, left him feeling winded when he played hockey and tennis, put him at snappish odds with friends who always wanted to mooch off his Juul and culminated in a shouting, tearful confrontation with his parents.



On the other hand, vaping may offer tangible benefits for people who wish to transition from smoking, as evidenced by several studies, with the caveats that vaping may spur dual use, which increases harm, or encourage relapse among some former smokers. The potential benefits of transitioning to a safer—but still harmful—product is called “harm reduction.” Testimonials detail the experiences of people who transitioned to vaping. Stephanie Rafanelli wrote about how vaping changed her life:

Well, not exactly cured; it was more of a switching of allegiance. The e-cig worked because it replicated the smoking action that was so deeply entrenched in my psyche. . . . The sensation was the same: the all-important inhale/exhale accompanied by a nicotine hit without the killer chemicals, tar and carbon monoxide. My nighttime wheeze subsided, my hair smelt permanently salon-fresh, and I was, apparently, much nicer to kiss in the mornings.


Youth are the primary focus of tobacco regulatory regimes

In the 1990s, a startling revelation arose from tobacco research that would fundamentally change tobacco regulatory efforts. The revelation was that most smoking starts in children. As shown in the table below, most people start smoking under 18, and nearly all start under 26.


Age First use of a cigarette First use of a cigarette for people who became daily smokers Age of becoming a daily smoker
≤15 49.8% 58.5% 28.1%
≤18 81.5% 88.2% 65.1%
≤21 92.9% 95.9% 85.6%
≤26 98.0% 99.0% 96.2%
Mean Age 15.9 15.1 17.9

Table: Age of cigarette initiation. Data from 2010 National Survey on Drug Use and Health.


It is no surprise, then, that tobacco companies are known to target children (including Juul e-cigarettes), and tobacco experts try to protect children. The D.C. Circuit Court of Appeals acknowledged as much in its long-awaited opinion in AAP v. FDA last Tuesday. The Court protected FDA authority to regulate tobacco and accurately observed that tobacco addiction begins in childhood:

Based on extensive evidence of tobacco’s widespread use and nicotine’s addictive character and harmful effects, Congress found that the “use of tobacco products by the Nation’s children is a pediatric disease of considerable proportions that results in new generations of tobacco-dependent children and adults.”

[More analysis on the district court opinion for AAP v. FDA at my previous blog post.]


Intergenerational Analysis

E-cigarettes present a more complicated picture than traditional cigarettes because they offer a potential benefit to current cigarette users. While cigarettes should arguably not exist in society, e-cigarettes have a legitimate function in a context where people use cigarettes and wish to transition.

Unfortunately, many adults partaking in the vaping advocacy movement have argued for their freedom to vape free of any restrictions. To the extent these adults resist all regulation of vaping, they have unwittingly support tobacco companies in seeking a world unfavorable to children’s health. The conceptual understanding that all barriers to vaping must be minimized to benefit smokers is demonstrated in the image below, with traveling downhill representing an easier transition. It is apparent that vaping is the likely outcome of such a regime.

Illustration demonstrating that both "no tobacco use" and "smoking" lead easily to vaping

Model 1 (current): Minimize all barriers to e-cigarettes.


There is strong evidence to support a more nuanced perspective, one that explicitly creates a role for regulation in protecting youth, and that creates intergenerational equity. This could include states and localities preserving a limited ability to vape tobacco-flavored e-cigarettes, but subject to restrictions. Children are attracted to flavored products, low prices, easy availability, and eye-catching marketing—all of which can be addressed while leaving e-cigarettes on the market in careful fashion for people who wish to transition. The outcome of such a regulatory regime is demonstrated below.


Illustration demonstrating how "smoking" could lead easily to "vaping" to "no tobacco use" in a context in which smoking and vaping are regulated

Model 2: Allow access to e-cigarettes, subject to restrictions that make “no tobacco use” the default and easiest option.


The second model allows for e-cigarettes to serve as harm reduction, that is, an intermediate step toward no tobacco use. E-cigarettes must not be so attractive and accessible as to draw in people who would otherwise not have used tobacco. If they do so, e-cigarettes cease to constitute harm reduction.


Daniel Aaron

Dr. Daniel Aaron grew up just outside of Boston. He graduated from Brown University and studied law and medicine between Harvard and Boston University. Dr. Aaron hopes to alleviate health injustice by studying the role of law and policy in creating and perpetuating disease. His research foci include food and drug law, obesity, opioids and related tort litigation, tobacco products, the intersections with racial health inequities, and constitutional health law. His research has been covered by the New York Times, CNN, Time Magazine, and others. Today, he is a Heyman Fellow at Harvard Law School, an attorney at the U.S. Food and Drug Administration, and a member of The Justice Initiative, a collaboration between Harvard Law School and Howard University School of Law aimed at building a community of lawyers and law students around racial justice. Publications: Tobacco Reborn: The Rise of E-Cigarettes and Regulatory Approaches, 25 LEWIS & CLARK L. REV. ___ (forthcoming 2021). Is Obesity a Manifestation of Systemic Racism? A Ten-Point Strategy for Study and Intervention, J. INTERNAL MEDICINE (2021). Ten years post-GAO assessment, FDA remains uninformed of potentially harmful GRAS substances in foods., CRITICAL REVS. OF FOOD SCIENCE & NUTRITION (2020). Constitutional Cohesion and the Right to Public Health, 53 MICHIGAN J. LAW REFORM 173 (2019). Sponsorship of national health organizations by two soda companies, 52 AM. J. PREVENTIVE MEDICINE 20 (2017). The Landscape of Genetic Variation in Dilated Cardiomyopathy as Surveyed by Clinical DNA Sequencing, 16 GENETICS IN MEDICINE 601 (2014). Nature Publishing Group.

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