OK House takes up regulations on e-cigs

OKLAHOMA CITY Bills under consideration in the Oklahoma House of Representatives this week touch the use, and possible regulation, of electronic smoking devices (ESDs), widely known as e-cigarettes but called personal vaporizers by many advocates and retailers.

Two of the bills would place some regulation of E-cig sales within the same broad title of state law as tobacco products, while fashioning regulatory limitations and some protections for the devices. Either of those could represent a slowing of the anti-e-cigarette juggernaut in Oklahoma over the last year, financed in large part by a state government agency.

Most notable of the pending bills, perhaps, is House Bill 3104, by state Reps. Mike Jackson, R-Enid, and Jon Echols, R-Oklahoma City, which would ban youth sales of vapor products “which may or may not contain nicotine.” Jackson is speaker pro temp for the Republican majority in the House.

The measure specifies that such e-products “do not include any products regulated by the United States Food and Drug Administration. “ H.B. 3104 is companion legislation to Senate Bill 1602, advocated in the upper chamber by Sen. Rob Johnson, R-Yukon.

The measure’s stated objectives are supported by grass roots activists (consumers and small retailers) organized through the Oklahoma Vapor Action League (OVAL), and draws sympathetic scrutiny from businesses like Reynolds American Services, an arm of R.J. Reynolds developing non-smoking products, including e-cigs.

A third proposal is House Bill 2904, by state Rep. Pat Ownbey, R-Ardmore. The measure would expand the definition of “tobacco products” explicitly to include “electronic smoking devices.”

Ownbey and other advocates say H.B. 2904 is consistent with existing federal law and court rulings, and does not create new taxation. Critics of the bill, however, believe it is a prelude to new regulations on and taxation of both e-cigarettes and some emerging tobacco products.

Alex Weintz, Gov. Mary Fallin’s spokesman, told CapitolBeatOK it was too early to “comment on specific legislation that is still evolving. However, the governor’s general philosophy on e-cigarettes is that they should not be sold to minors, they should be responsibly regulated, and the public should be educated that there are possible health risks associated from their use.”

In December, Fallin promulgated an executive order banning e-cigs on state property.

Fallin’s views on possible health issues for e-cigarettes parallel those of her Cabinet Health Secretary, Dr. Terry Cline.

In response to an emailed question to Cline from Oklahoma Watchdog, Leslea Bennett-Webb, communications director at the state Health Department, declined to comment directly on the Jackson-Echols-Johnson bills.

However, she said, “Our preference is H.B. 2904, which provides a straight forward, no nonsense approach to restricting youth access to electronic cigarettes and other vaping products under the Youth Access to Tobacco Act, expanding the existing definition of tobacco products to include ‘electronic smoking devices.’”

Like others in the e-cig saga, Bennett-Webb desires an FDA ruling on e-cigs. She believes the devices are “tobacco derived products” which will ultimately be subject to FDA regulation.

She concluded, however, “We do not propose that these products be subject to tobacco taxation.

In December, just days before Gov. Fallin issued an executive decree
banning use of e-cigarettes on state property, Cline promulgated a “health advisory” critical of recent efforts to keep e-cigarettes out of regulatory gun-sites.

Although Cline has said there are “no credible studies performed on the safety or efficacy of electronic cigarettes,” the “advisory” was interpreted a call to equate the devices with tobacco for public health purposes.

Sen. Brian Crain, R-Tulsa, who conducted a day-long hearing on e-cigarette issues, wrote Cline on Dec. 11, 2013, asking him to review three studies pointing to the comparative safety of “vaping products” and their utility in tobacco cessation. Sen. Crain asked Secretary Cline to respond before the start of the state legislative session on Feb. 3 — but as of this weekend he had not received any answers.

As the bills moved onto the legislative calendar, a sign of what may be a contentious day or two of debate came late Friday, as Doug Matheny, a former state employee known for his passionate antagonism to tobacco and, more recently, to e-cigs, visited reporters and legislative staff at the Capitol. He assailed both H.B. 3104 and S.B. 1603, calling on legislators “to serve children, not the tobacco industry.” Matheny is also opposed provisions in the proposals that would treat smokeless tobacco products differently than smoked tobacco, per se.

Defending H.B. 3104 and S.B. 1602 is Sean Gore, OVAL’s director.

Gore said his members want to “protect our youth while at the same time looking out for the safety and interest of adult smokers wanting to quit and ex-smokers who have effectively used e-cigarettes as a means to move away from tobacco.”

In his most recent interview with CapitolBeatOK, Gore — owner and operator of a vapor products business in addition to his leadership role with OVAL — pointed to independent and peer-reviewed studies he contends find e-cigarettes far “more effective than the so call unsuccessful cessation products pushed by the health organizations.”

He also said, “To overlook these studies and push for a definition of and taxation as tobacco on a product that contains no tobacco what so ever would not only be a huge disservice to Oklahoman’s across this state, but would have a catastrophic effect by driving more individuals back to tobacco.”

The Oklahoma debate has drawn national attention, including from David Howard, senior director of communications for Reynolds American Services, linked to R.J. Reynolds Co.

Howard’s firm is involved in development of both smokeless tobacco alternatives and in creation of newer non-tobacco vapor products.

He told CapitolBeatOK, “The bottom line is, e-cigarettes are different from traditional combustible cigarettes – they do not contain tobacco, there is no burning and therefore there is no smoke. Because they are different, we believe they should be defined differently and treated differently when it comes to taxation and use restrictions.”

On the tax question, lurking at the edge of this week’s Oklahoma debate, Howard commented, “If taxed at all, e-cigarettes should have a much lower tax than that of cigarettes or other tobacco products. As for use restrictions, as there is no secondhand smoke, we believe e-cigarettes should not be restricted the same as traditional cigarettes.”

You may contact Pat at Patrick@capitolbeatok.com .