The Leaflet: States Consider Taxing and Regulating E-Cigarettes

Published February 24, 2017

In recent years, the e-cigarette/vaping industry has been inundated with new regulations and has continuously faced the threat of excessive taxation. Most recently, in August 2016, the Food and Drug Administration (FDA) adopted rules regulating e-cigarettes that could cripple the vaping industry.

According to a recent article from the Competitive Enterprise Institute (CEI), on January 30, 2017, federal judges struck down an attempt to classify vaping products as “medical devices,” blocking their importation into the United States. CEI Fellow Michelle Milton argues in the article, “The agency deemed vapes ‘tobacco products,’ making them subject to the same rules and regulations as traditional cigarettes, despite all evidence pointing toward their being much less harmful for consumers. If allowed to stand, the FDA’s new deeming rules would functionally eliminate 99 percent of vaping products from the market.”

For decades, lawmakers and regulators have used taxes, bans, and draconian regulations as part of their attempt to reduce the negative health effects of smoking tobacco. Recently, some have sought to extend those policies to less-harmful products, such as vapes, e-cigarettes, and heat-not-burn products.

In a 2016 study, Dr. Michael Pesko, a health economist and assistant professor of health care policy and research at the Weill Cornell Graduate School of Medical Sciences, argued, “We should regulate tobacco products proportionate to their risks, and electronic cigarette evidence suggests they’re less risky products. While there’s some risk, it would be a mistake to regulate them the same way we regulate cigarettes.”

Pesko’s claim is valid. Health professionals have long known the smoke produced by combustible cigarettes – not the nicotine – is what makes smoking harmful. This point is emphasized by Dr. Brad Rodu, a professor of medicine at the University of Louisville, in his excellent new booklet, published by The Heartland Institute, titled Vaping, E-Cigarettes, and Public Policy Toward Alternatives to Smoking. Rodu has been at the forefront of tobacco harm reduction research and policy development for more than 20 years. He is a member of the James Graham Brown Cancer Center and holds an endowed chair in tobacco harm reduction research.

In the booklet, Rodu argues, “Smokeless tobacco and e-cigarettes provide a much safer and healthier alternative delivery system for nicotine. Tobacco harm reduction is a proven strategy for helping smokers reduce their tobacco use or quit altogether.”

What We’re Working On

Budget & Tax
Roadmap for the 21st Century: National Defense
The Roadmap for the 21st Century project was created by a group of free-market, pro-liberty experts located across the country. In their Roadmap series, the experts express their views on the major public policy choices facing America today, particularly those affecting economic growth and prosperity. This Roadmap paper, which covers national defense, was authored by the Working Group on National Defense. It discusses the importance of U.S. military readiness. The authors – Heartland Senior Fellow Peter Ferrara and Lewis Uhler, president of the National Tax Limitation Committee – conclude: “National defense is the first and primary obligation of the national government. We cannot allow that responsibility to be downplayed because the national treasury has been depleted by bread, circuses, and income redistribution. We must be willing to increase national defense spending to accomplish these goals.” Read more

Research & Commentary: ESA Expansion Would Benefit All Arizona Families
In this Research & Commentary, Policy Analyst Tim Benson writes about a proposed expansion to Arizona’s Empowerment Scholarship Account Program, the nation’s first education savings account (ESA) program. Arizona’s program pays for tuition and fees at private schools and can be used to pay for textbooks, online education, education therapies, private tutoring, and standardized test fees. If the program is approved by legislators, all Arizona students would become eligible for the program by the 2020–21 school year. Eligibility would phase in incrementally and in a staggered fashion, starting with students in kindergarten, 1st grade, 6th grade, and 9th grade in the 2017–18 school year. Enacting this expansion to the Empowerment Scholarship Account Program, Benson writes, would keep Arizona at the forefront of the education-choice movement and would give every family in the state a greater opportunity to meet each child’s unique education needs. Read more

Energy & Environment
Research & Commentary: Rooftop-Solar Subsidies in Minnesota Should Be Repealed
A proposal to reform Minnesota’s  Renewable Development Fund and end the Made in Minnesota Solar Incentive Program passed in the Minnesota House of Representatives and now awaits a vote in the Senate. The Renewable Development Fund, which was last budgeted at $42 million, aims to promote non-nuclear renewable energy. Made in Minnesota currently provides homeowners with a subsidy worth roughly 40 percent of the cost of installation of solar panels, as well as an annual rebate for the power those panels produce – so long as those panels are manufactured in Minnesota. The program has an annual budget cap of $15 million, with $250,000 set aside per year for solar-thermal rebates. In this Research & Commentary, Policy Analyst Tim Benson writes solar energy forced on consumers by state legislatures through subsidies like these is extremely expensive and that programs such as Made in Minnesota act as little more than welfare programs for the upper-middle class. The elimination of energy subsidies, he argues, would lower electricity prices substantially. Read more

Health Care
Research & Commentary: Open Up Georgia for Direct Primary Care
One of the lesser-known factors contributing to the rapid increase in the cost of health care is the shrinking number of primary care physicians (PCPs) available relative to the size of the population. Like most states, Georgia faces a severe primary care shortage. The Robert Graham Center has estimated to maintain current rates of primary care utilization, Georgia will need “an additional 2,099 primary care physicians by 2030, a 38 percent increase in the state’s current (as of 2010) 5,496 practicing PCPs.” In this Research & Commentary, Heartland Senior Policy Analyst Matthew Glans examines direct primary care. Glans argues Georgia legislators should consider reforms to make the service more readily available. “Direct primary care empowers patients and doctors, giving them more freedom to establish and participate in health care provider models that work best for all patients,” Glans wrote. “Georgia should remove unnecessary regulatory barriers to direct primary care to help revitalize the state’s primary health care system.” Read more

From Our Free-Market Friends
Mercatus Center Releases ‘A Snapshot of Virginia Regulation in 2016’
It would take an ordinary person almost three years to read the entire U.S. Code of Federal Regulations (CFR), which contained over 103 million words in 2012. The sheer size of CFR poses a problem not just for the individuals and businesses that want to stay in compliance with the law, but also for anyone interested in understanding the consequences of this massive system of rules. States also have sizable regulatory codes, which add an additional layer to the enormous body of federal regulation.

In a recent study, the Mercatus Center at George Mason University examines the 2016 Virginia regulatory code, known as the Virginia Administrative Code (VAC). The researchers conclude, using a tool known as RegData, VAC contained in 2016 24 titles comprised of over 32,000 unique sections of text. RegData is a text-analysis computer program capable of scanning lengthy bodies of legal text and capturing information in minutes that would take an unaided person hours, weeks, or even years to process. The tool allows researchers to identify the industries most targeted by regulation by connecting keywords relevant to industries with restriction counts. Restrictions are words and phrases such as “shall,” “must,” “may not,” “prohibited,” and “required.” Restrictions signify legal constraints and obligations. According to Mercatus’ report, VAC, as of October of 2016, contained 8.8 million words and 133,094 restrictions. Read more