Michigan’s legislature got it right last year, passing bills to ban the sale of e-cigarettes to minors. Only a handful of states haven’t gotten around to this sensible, limited form of e-cigarette regulations.

Under pressure from activist groups who oppose this approach, Governor Snyder hasn’t signed the bill, and may veto or pocket veto it in the next week.

You read that right: so called “public health” groups have been lobbying governors and legislators around the country against bans on sales of e-cigarettes to minors. Why? Get this: because bans on sales of e-cigarettes to minors make sense and are popular. So the activists are trying to load up these bills with all sorts of nanny state provisions that would incorrectly treat e-cigarettes as if they were actual cigarettes.  Then the activists could accuse opponents of the add-on regulations of supporting the sale of e-cigarettes to minors.

I lay bare the strategy, and its perils, in a letter to Governor Snyder yesterday:

Dear Governor Snyder,

I’m writing to share with you my perspective on the legislation banning the sales of e-cigarettes to minors, which awaits your signature.

 As a long-time anti-smoking policy expert, I have studied the issue of tobacco harm reduction at the city, state, and federal level.

Failing to sign this legislation would leave Michigan as one of the few remaining states that allow the sale of e-cigarettes to minors.

By definition, no reputable retailer sells e-cigarettes to minors, even without this legislation on the books. However, like in any field, there are unscrupulous actors. This legislation would properly make their actions illegal, and send a clear message that these products, which are meant for adult smokers, are not for minors.

There is a nearly universal consensus that there should be a ban on sales of e-cigarettes to minors. However, groups who seek your trust have been advising you not to sign the bills. Instead, they seek to keep the sale of e-cigarettes to minors legal, until they are able to pass legislation that rushes to treat e-cigarettes exactly like combustible cigarettes. However for this, there is little support in the scientific community.

In fact, treating e-cigarettes like cigarettes would undermine a central tenet of the U.S. FDA’s approach to securing the potentials benefit of e-cigarettes, while minimizing any potential harm.

As the FDA’s chief tobacco regulator, Mitch Zeller, told the Robert Wood Johnson Foundation’s New Public Health, “The other example is if at the end of the day people are smoking for the nicotine, but dying from the tar, then there’s an opportunity for FDA to come up with what I’ve been calling a comprehensive nicotine regulatory policy that is agency-wide and that is keyed to something that we call the continuum of risk: that there are different nicotine containing and nicotine delivering products that pose different levels of risk to the individual.

 Right now the overwhelming majority of people seeking nicotine are getting it from the deadliest and most toxic delivery system, and that’s the conventional cigarette. But if there is a continuum of risk and there are less harmful ways to get nicotine, and FDA is in the business of regulating virtually all of those products, then I think there’s an extraordinary public health opportunity for the agency to embrace some of these principles and to figure out how to incorporate it into regulatory policies.”

Certainly, regulatory approaches to e-cigarettes, beyond those already underway at the Food and Drug Administration will need to take into account what Mr. Zeller and others refer to as the “continuum of risk” among different products. Failure to do so risks unintended consequences that include discouraging smokers from switching to significantly less harmful products such as e-cigarettes.

Those who encourage you not to sign the ban on e-cigarette sales to minors are seeking a range of potentially harmful regulations. Yet those proposals deserve individual consideration on their merits, taking into account the best science available. Those approaches do not deserve any halo from the consensus of banning sales to minors. Conversely, a ban on sales to minors should not be delayed because some groups seek to advance approaches that aren’t supported by science and may undermine public health.

In the meantime, you should act today to remove Michigan’s name from the quickly shrinking list of states which still legally permit the sale of e-cigarettes to minors.

Sincerely,

Jeff Stier, Senior Fellow, National Center for Public Policy Research