A woman is pictured using her vaping device in Harmony, Pa. Several pieces of legislation expected to impact the future use of e-cigarette in New York have been brought forward. An appeals court has temporarily blocked a ban on flavored e-cigarette. AP photo

The future of e-cigarettes has been placed firmly on the state Legislature’s 2020 agenda.

Assemblywoman Linda Rosenthal, D-Manhattan, proposed five pieces of legislation on Oct. 2 dealing with e-cigarettes. All five have been referred to the Assembly’s Health Committee.

The legislation comes at a time when a state Appeals Court has temporarily blocked a ban on flavored e-cigarettes by Gov. Andrew Cuomo unveiled during a then-unexplained sickness among some users of e-cigarettes. That sickness was later found to be tied to vaping devices containing THC, particularly obtained off the street or from informal sources.

At the same time, Dr. Howard Zucker, state health commissioner, presented data to the Special Codes Committee of the Public Health and Health Planning Council, which is part of the state Health Department, in September that showed New York state high school student use of tobacco products rose 160% from 2014 to 2018. Surveys showed that 40% of 12th-grade students in New York state had used e-cigarettes. That information helped form the basis of Cuomo’s ban on flavored e-cigarettes. The governor’s ban was only to stand for 90 days as a piece of emergency legislation and would have to be renewed to continue.

Now, state legislators will have the chance to weigh in on the controversy.

MARKETING OF E-CIGARETTES

A.8630 would standardize e-cigarette design and require health warnings on the product. The law would require businesses selling tobacco products to have the products stored behind a counter in an area where only store personnel can get them or in a locked container. The only exception would be businesses that only admit those ages 21 and older. The measure would also make e-cigarettes comply with the state’s General Business Law requirement that cigarettes have a warning about the consequences of excessive smoking. Those found violating the law could face a fine of up to $1,000.

“E-cigarettes remain a relatively new product, first introduced to the market in the United States in 2006,” Rosenthal wrote in her legislative justification. “E-cigarettes have not been used or studied long enough for scientists to demonstrate the long-term health effects associated with their use, nor have they received approval from the federal Food and Drug Administration as a smoking cessation device. Available research does not demonstrate that these products are “safe” or free of health risks. This legislation will require health warnings on both the packaging and the actual e-cigarette so that consumers are fully aware of the risks associated with their use.”

REQUIRE NICOTINE TAPERING

A.8629 would require the state Health Department to establish nicotine levels for electronic cigarettes and e-liquids which automatically taper in nicotine strength in amounts and at certain time intervals. It would also require manufacturers to only manufacture electronic cigarettes or e-liquids that automatically taper nicotine’s strength in amounts and time intervals determined by the Health Department.

The Food and Drug Administration hasn’t approved e-cigarettes as a smoking cessation device, but e-cigarettes are marketed as a way to help cigarette smokers quit smoking. One of the reasons Cuomo’s earlier ban on flavored e-cigarettes didn’t include menthol e-cigarettes was the fear that the state could be banning a possible way to help smokers quit smoking. Rosenthal wrote that e-cigarettes should behave as other devices designed to help smokers quit by decreasing the amount of nicotine smokers receive the longer they use the product.

“The goal of nicotine replacement therapies, such as nicotine gum or the patch, is to slowly reduce the amount of nicotine until the user does it rely on any nicotine at all,” Rosenthal wrote in her legislative justification. “They are not intended for long-term use and instead are used to aid in quitting smoking or the use of chewing tobacco. Since e-cigarette manufacturers are marketing their devices as smoking cessation devices, they should be designed to function as such. This legislation would help ensure their efficacy as smoking cessation devices by requiring that e-cigarettes automatically taper the amount of nicotine delivered to the user, as is recommended with other nicotine replacement therapies.”

Violators can face a civil penalty.

DOCTOR’S PRESCRIPTION REQUIRED

A.8628 would require a valid prescription from a licensed physician in order to purchase, obtain or use an electronic cigarette. The state Health Department would be empowered to develop further rules and regulations.

“E-cigarette manufacturers are now marketing their devices as smoking cessation devices, and therefore should not be a product that a person uses long-term,” Rosenthal wrote in her legislative justification. “This legislation will prevent new nicotine addictions by requiring a prescription from a licensed physician in order to obtain an electronic cigarette.”

MATERIAL DISCLOSURE, STUDY REQUIRED

A.8627 prohibits the use of toxic metals in electronic cigarettes, requires disclosure of materials used in e-cigarette hardware and requires the state Health Department to study the long-term health effects of electronic cigarette users.

Those who make, sell or distribute e-cigarettes would have to disclose to the state Health Department the materials used in the e-cigarette hardware while the state Health Department would be tasked with creating a list of toxins e-cigarette makers would be prohibited from using. The bill text includes prohibitions on lead and manganese and states the list will be regularly updated and posted on the Health Department’s website.

“A 2018 study by Johns Hopkins Bloomberg School of Public Health found toxic metals, including lead, in significant amounts in the heating elements of e-cigarettes and are present in the aerosol inhaled by e-cigarette users,” Rosenthal wrote in her legislative justification for the bill. “Lead exposure is particularly dangerous for young people, who have been aggressively been targeted by e-cigarette companies in recent years. Further, research has also shown that e-cigarettes contain a wide range of harmful chemicals the chemical composition of which changes when heated and are aerosolized and inhaled by the user or emitted in second and third hand vapor from the devices.”

Rosenthal’s legislation also directs the state Health Department to study the long-term health effects of e-cigarettes, including data on the health effects of inhaling heated aerosols contained in e-cigarettes.

MORATORIUM ON SALES UNTIL FDA REVIEW IS COMPLETE

Rosenthal’s final piece of legislation would implement a moratorium on sale of e-cigarettes until the federal Food and Drug Administration conducts a premarket approval on the products to determine if they are safe and effective for use as a way to help cigarette smokers quit.

The legislation imposes a penalty of at least $10,000 for violations.

“In the summer of 2019, hundreds of people around the United States were hospitalized for respiratory problems linked to vaping; multiple deaths were reported,” Rosenthal wrote in her legislative justification. “The American Medical Association urged Americans in September 2019 to stop vaping until more information was gathered on these illnesses and the harms associated. E-cigarettes are a relatively new product, first introduced to the market in the United States in 2006. E-cigarettes have not been used or studied long enough for scientists to demonstrate the long-term health effects associated with their use, so claims that these products are “safe” are baseless at best. While many e-cigarette manufacturers are now marketing their product as a smoking cessation device, they are not yet approved for this purpose by the United States Food and Drug Administration.”