Where Do We Stand?

• The substantial action has been from state legislatures– Restricting Youth Sales– Restricting Use in Public Places– Labeling/Packaging– Defining “e-cigarette”

But AGs are prepared to move into this space, they have the experience working individually and collectively, and they have hammer that is the state consumer protection act.

• Restriction on Sales to Minors: – currently 41 States with laws on the books– laws vary from state to state

• Use in Public Places: – 3 States appear to ban e-cigarettes under existing “Smoke-

free venue” laws– At least 13 others have selective prohibitions, ranging from

school property and correctional facility prohibitions to all state agency grounds

– At least 188 cities and counties throughout 26 states and the District of Columbia have enacted laws prohibiting or limiting the use of e-cigarettes in public venues• laws vary widely, and are specific to the city/county.

THE NUMBERS

• Labeling/Packaging:– Minnesota requires child-resistant packaging for liquid

nicotine containers (eff. Jan 1, 2015)– Only proposed legislation but no other current

requirements for ingredient labeling or packaging regulation

• Advertising– No bans on TV advertisements– No restrictions on advertising the “benefits” of e-cigarettes

• Defining “e-cigarette”– Tobacco product: 11 states– Alternative Nicotine product: 14 states– Vapor product: 11 states– Other: 5 states

THE NUMBERS (cont.)

• Current Kentucky Law defines electronic cigarettes as “vapor products” under KRS §438.305 (9)(a).

• The Commonwealth places restrictions on:– Sale/distribution/purchase of e-cigarettes to

minors under the age of 18. KRS §438.311; KRS §438.313.

– Use of vending machines to sell e-cigarettes, unless located in adult-only establishment. KRS §438.315.

• Requires random inspections of retail establishments that sell electronic cigarettes. KRS §438.330

Kentucky’s Laws

• State Attorneys General are just beginning to tackle the issue

• 2010: California and Oregon AG’s sue Smoking Everywhere

• 2013: National Association of Attorneys General: letter to the FDA to bring e-cigarettes under the definition of “tobacco products” and the Tobacco Control Act.– 40 Attorneys General signed this, including KY– Citing Sottera, Inc. v. Food & Drug

Administration, 627 F.3d 891 (D.C. Cir. 2010) • 2014: Maryland Attorney General Douglas F. Gansler

– Letter to e-cig manufacturers with 3 inquiries

Action by State Attorneys General

ATTORNEY GENERAL GANSLER’S LETTER

“[I] urge you to take action to address these significant public health issues, including:

1. Placing clear and conspicuous warnings on the packaging for e-cigarettes and liquid nicotine cartridges that warn of the dangers of touching or ingesting nicotine. [Omission of material information]

2. Refraining from marketing that appeals to children, including not offering and selling flavors of liquid nicotine that appeal to children. [Unfair or Deceptive Trade Practice]

3. Using product designs that prevent inadvertent exposure to liquid nicotine and limit children's ability to access the liquid nicotine. [Unfair or Deceptive Trade Practice]

• “[M]uch of the information in this area is used selectively to create propaganda and scare mongering.”

• “I fail to see how ‘more than half’ of the calls to the centers were about children under the age of five being ‘exposed’ to toxic levels of nicotine and yet not result in a single (tragic) death.”

• “These phone calls are simply that; phone calls!” • “I wonder if, by comparison, you have also looked at

the poison calls referencing toothpaste?”

White Cloud’s Response to Attorney General Gansler

Focus on three issues:

• Misleading Advertising

• Marketing to Minors

• Inherent Dangers in Lack of Quality Control for Cartridges

The Current Role of Attorneys General in the Advertisement and Use of E-Cigarettes

Misleading Advertising

Marketing (a comparison)

Marketing (a comparison)

Directed at Children?

• There are no restrictions currently in place against advertisement marketed towards children

• Flavorings (blu™ e-cigarettes)– Cherry Crush– Piña Colada– Peach Schnapps

• According to the CDC, over 20% of the middle school students who reported using e-cigarettes had never previously tried traditional cigarettes

• Internet Sales:– How can this be monitored?– Age ID verification on websites– Restricted access to social media and marketing at events that

have significant youth following – Verification on delivery

MARKETING DIRECTED AT CHILDREN?

• No standardized dosage of nicotine– Amounts range from 4mg/ml to 48 mg/ml

• Absorb nicotine through mere contact with your skin• Currently no quality control in the additives within the

nicotine solutions• Reports of nicotine poisonings have doubled across the board• Child proofing? • Tamper Resistant? – Alternative drug delivery device

Inherent Dangers: Quality Control

• History of the MSA• Feb. 2014: Senator Tom Harkin, Rep. Henry Waxman and Rep. Peter

Welch write AGs asking them to put e-cigs in the MSA• Argument that e-cigarettes should fall under it:

– “tobacco product” is a cigarette or smokeless tobacco product– A “cigarette” is any product that contains nicotine, is intended to

be heated under ordinary conditions use and contains tobacco, in any form, that is functional in the product, which, because of appearance…is likely to be offered to, or purchased by, consumers as a cigarette.

– Placing e-cigarettes under the MSA keeps them in the marketplace

– Immediate effect– Helps create uniformity in the law

THE TOBACCO MASTER SETTLEMENT AGREEMENT (MSA)

• Benefits of classification under the MSA:– Prohibits directly or indirectly targeting youth in

advertising/promoting/marketing of e-cigarettes– Bans the use of cartoon images to promote e-cigarettes– Prohibits e-cigarette brand-name sponsorship of youth-oriented

events– Restricts outdoor advertising of e-cigarette products– Outlaws free e-cigarette gifts without proof of age– Prohibits payments to promote tobacco products in movies or

other forms of media.

THE TOBACCO MASTER SETTLEMENT AGREEMENT (cont.)