Potpourri of Other Legal and Quasi-Legal Considerations
For the e-cigarette community, legal issues other than those encountered by the cigarette, and to some extent the tobacco industry as a whole, may be relevant to the e-cigarette’s continuing legal encounters.
E-cigarettes and the Aviation Industry
For the e-cigarette community, the prohibited use of the e-cigarette on commercial airline flights, including non-American airlines, is growing worldwide, especially given the announcement by the FAA that in the spring 2012, e-cigarette use on airlines under its authority will be prohibited. Even if the e-cigarette community could provide with no exceptions that the vapor produced by the c-cigarette contained nothing other than that which was originally in the atmosphere of a plane before the e-cigarette was used, it is doubtful that the trend against the use of e-cigarettes on commercial airline flights would significantly change.
What seems to be ignored, but possibly will become prohibited, is the possession of e-cigarettes, or any other e-tobacco use product on flights. Such a prohibition on the bringing e-cigarettes on commercial airlines has nothing to do with the tobacco issues, or smoke versus vapor arguments currently facing the e-cigarette manufacturers. In the future, the ignition system within the e-cigarette itself might become the issue. With terrorists experimenting with ingenious methods of delivering their agents of violence, the e-cigarette is vulnerable to such a use, and consequent prohibition.
Potential Expansion of the No Smoking Zone
The most recent attack of the anti-tobacco coalition is on sports arenas. However, given the fact that in many sports, the participants use tobacco products, this attack probably has many obstacles to overcome. For the e-cigarette community, any expansion on smoking prohibitions needs to be monitored.
To-date, the FDA has had little success in the courts in its attempts to enforce regulations on the e-cigarette manufacturers. Even the more recent threat of the FDA regarding manufacturing defects and contaminated tobacco in e-cigarettes, and the newer law, the FDA has a substantial burden to overcome.
Turning Enemies into Allies
Being pro-active, instead of waiting for the legal system to legislate that the e-cigarette comes under the same laws and regulations as cigarettes or other tobacco products, the e-cigarette manufacturer and community can “get to the courthouse first.” Trying legally to separate the e-cigarette (and its progeny) from the tobacco products that are smoked is a tactic that could prevent e-cigarette inclusions. Certainly, the e-cigarette industry would have to demonstrate that the vapor is not smoke, that the vapor contains no nicotine, and that the vapor itself is no different from any other steaming product which is not regulated or prohibited. Since second-hand smoke is currently as much a concern as the harm to the initial user, demonstrating that such a threat does not apply to e-cigarette vapor is imperative.
Although several of the e-cigarette NGO stakeholders would like law prohibiting the use of any nicotine product, that tactic seems improbable given the negative impact on the economy such an action would have. Consequently, by providing a non-nicotine alternative to the traditional cigarette, the e-cigarette can provide an answer to the concerns of these NGO stakeholders while accommodating the e-cigarette users.