HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, November 2, 2012

Regulation of New Smokeless Nicotine Delivery Systems

Three days at the American Public Health Association’s annual meeting has provided me with enough information/inspiration for dozens of posts.  But the most interesting thing I learned, and would like to share, is the very complicated dance now being performed by the FDA’s new Center for Tobacco Products’ efforts to regulate in the face of the Tobacco’s industry ingenious efforts at evading regulation by developing a range of new products  attractive to children which are either “not cigarettes” or “not smoked” but do not necessarily pose different health risks than those already identified from smoking cigarettes.   It’s highly likely that many of our students have a product like “Snus” in their mouth during class. Here’s a recent 60 Minutes Report describing the phenomena

As the CDC reported recently, “Although total cigarette consumption continued an 11-year downward trend with a 2.5 percent decline from 2010 to 2011, dramatic increases in use of non-cigarette smoked tobacco products have slowed the long decline in overall consumption of smoked tobacco products.” 

The CTP is doing its best to keep children from being addicted to tobacco.  But it is a new operation operating under many restrictions.  As many of you may know, on June 22, 2009, President Barack Obama signed into law the Family Smoking Prevention and Tobacco Control Act.  Before that, the FDA was prohibited from regulating tobacco at all.  However, the political compromises that led to the FSPTCA being passed has made for some very odd restrictions on its ability to directly address the marketing of tobacco to children.  For example, one of the things the FSPTCA did was ban flavored tobacco because of its appeal to children.  But since cigars are exempt from regulation, imagine the wholesome images of new dads handing out cigars, the industry has developed “mini” cigars that not only look and feel like cigarettes but also have the kinds of appealing to kids.  As the Washington Post reports:

 “[t]hey come in ice cream flavors such as strawberry, watermelon, vanilla and chocolate. They are packaged in colorful wrappers. “Little cigars” are finding a niche among teens, who like the price — about a dollar — and the taste.

Young smokers say these cigarette-size little cigars and cigarillos — slimmer versions of big cigars — look better and can be bought one at a time instead of spending more than $5 for a pack of cigarettes. Many teens also think that they are less addictive.”


It’s also legal to make claims like “lite” on these “non-cigarette” tobacco products even though the FDA has managed to prohibit these claims on traditional products. How this possible?  Because a “cigar” is wrapped with a tobacco product (often a leaf from “shade tobacco” grown in my native Connecticut River Valley) while a “cigarette” is wrapped in paper.  So what looks like a cigarette but isn’t—a mini cigar with a paper wrapping that contains tobacco.

What made the panel so interesting was the “dance part” because it included representatives from the CTP and lawyers from the Public Health Law Center at William Mitchell School of Law who were not at all restrained in their ability to criticize the industry.

While I don’t have the slides from the presentation, here is similar information from the PHLC’s website.  

PHLC is working on all fronts to ban these products—including closing tax loopholes in many states which exempt these “non-cigarette” products either directly or simply through old definitions which do not apply to these new products.

If you know someone using tobacco products under the delusion that they are less dangerous in any way, talk to them about quitting.   But it’s a hard sell.  I often ask my students who smoke why they don’t use a nicotine patch or chew the gum—and the answer I get is usually some variation on “it’s too expensive” or “I’m not trying to quit” or “I just don’t like the gum.” 

One thing this has sparked in me is an interest to find out more about pure nicotine delivery systems.  Given all the dangers of tobacco, would it be so bad for people to take in nicotine the way we do coffee?  Could Starbucks or Pinkberry put a shot of nicotine in a latte or smoothie?  A recent report from the UK considers the issue—and makes some interesting conclusions.  So reports from Sweden about a reduction in cancer rates from use of an oral product, Snus, which is available in the US, and which delivers nicotine without the tar and other carcinogens.  But it too is controversial.  As explained by Michael Thun, M.D., vice president emeritus of epidemiology and surveillance research at the American Cancer Society   “The last time companies introduced smokeless products in the U.S., there was a big epidemic among teenage boys. There is no way the FDA is going to encourage young people to start with snus in the hope that this will prevent them from starting with cigarettes.”

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