Stephen D. Sugarman is the Roger J. Traynor Professor of Law at the University of California at Berkeley.
Cigarettes deliver smoke into the user’s mouth and then the lungs. The smoke comes from burning tobacco, and it is that burned tobacco smoke that is the most dangerous aspect of cigarette smoking. That smoke also delivers nicotine to the smoker, and the initial and often ongoing pleasure obtained from the nicotine is what typically makes many smokers enjoy the product. But since nicotine is addictive, it is what tends to make smokers hooked.
Whatever the pleasure, if any, that smoking provides, many smokers appreciate that continued smoking carries with it a very substantial chance of death from a smoking-related disease like lung cancer, heart disease, or chronic obstructive pulmonary disease. At the same time, other smokers remain surprisingly uninformed, either substantially underestimating or overestimating the risks of smoking.
But the risks are serious—often lethal. At present, about 15 percent of adults in the United States smoke cigarettes, and as a result smoking claims the lives of more than 480,000 Americans each year. Notably, the Centers for Disease Control and Prevention describes smoking as the nation’s largest preventable cause of death. By way of comparison, motor vehicle deaths plus homicides from guns collectively account for about one-tenth as many deaths.
In light of the undeniable risks posed by smoking, a large majority of regular smokers say they would like to quit. Indeed, most have tried to quit, often several times, typically by employing different cessation strategies—for example, using the nicotine “patch” or nicotine “gum,” participating in smoking-cessation support programs, or simply stopping “cold turkey.” Some initially succeed in their quest to quit smoking, although many of these individuals subsequently relapse, only to later try to quit again.
Given the widespread but often unsuccessful efforts to quit smoking, one might think that U.S. health officials would welcome a new and far less dangerous substitute behavior: vaping. Unfortunately, regulators so far mistakenly have treated vaping akin to smoking, rather than embracing vaping’s smoking-cessation potential.
Vaping is a relatively new behavior. One can vape nicotine with products commonly referred to as e-cigarettes (shorthand for “electronic nicotine delivery systems,” or ENDS). Vaping delivers a vaporized liquid into the user’s mouth and then lungs without any substances being burned in the process. Most people vape to obtain nicotine vapor from a heated liquid that is extracted from tobacco. It is on this basis that the U.S. Food and Drug Administration (FDA) and the Surgeon General have termed vaping tools tobacco products—even though they do not actually contain any tobacco.
It is also important to appreciate that many vapers inhale a product that is completely devoid of nicotine, and hence cannot in any way be conceived of as a tobacco product. And yet, officials are beginning to regulate these “e-cigs” as though they are.
Because vaping does not involve smoke from a burned leaf, it is dramatically less dangerous than is smoking, according to current evidence. Indeed, public health officials in the United Kingdom, estimate that vaping is 20 times less dangerous than smoking. In addition to being less dangerous than smoking, vaping also has proven to be an effective smoking-cessation strategy. Surveys of U.S. vapers show that many of them used to smoke cigarettes and now no longer do so. Indeed, many vape as a transition from nicotine use to non-use, and in due course, neither smoke nor vape.
To be sure, not all people who vape in an effort to quit smoking ultimately are successful: some revert back to their cigarette-smoking ways, while still others not only resume their cigarette-smoking habits, but they also continuing vaping and become dual-product users. Yet, we should be very pleased that many people are finally able to quit smoking via vaping.
Accordingly, given vaping’s evident smoking-cessation potential, what, then, is the problem? Why are many tobacco-control leaders and public officials crusading against vaping?
Some critics are what might most fittingly be called Nancy Reagan acolytes. They argue that people who smoke should simply say “no”; if only they were to do so, these critics claim, vaping would not be needed as a cessation strategy at all. For these public health crusaders, vaping is just an unneeded distraction. In their view, the patch and the gum suffice for those needing transitional help ending their use of nicotine (although the typical smoker who tries vaping has previously tried—and failed—to quit with the patch, the gum, or both). These observers view the recent sharp drop in U.S. smoking rates as a development that has occurred independently of the advent of vaping.
Others argue that vaping is even more detrimental than a mere distraction to those trying to quit smoking. According to these critics, some smokers who would have just said “no” instead are becoming dual cigarette and vaping users—and are now worse off for it.
If these two scenarios reflected the real world, then it would be correct to conclude that e-cigarettes are not actually harm-reduction products, despite being less dangerous than conventional cigarettes. But a more realistic conception is that a large share of vapers are people who otherwise would have continued as smokers. For the individuals in this group who transition off of smoking via vaping, these new products are, in fact, a public health gain.
Yet too many tobacco-control leaders seem altogether unwilling to acknowledge this important point. Instead, they typically mount a different anti-vaping argument—that vaping will renormalize tobacco use and cause more young people to start smoking cigarettes than would have had vaping not been available to them. Were this so, that would admittedly be a substantial public health negative. But so far this seems to be rooted more so in fear than reality.
Few teens are regular vapers. For those who are, it seems just as likely that vaping helps derail them from ever starting to be regular full-time smokers as it does to move them onto smoking. Many who try vaping and go on to smoking would have become smokers anyway. Since teen smoking rates are sharply dropping since vaping has been introduced, on balance, even among teens, vaping might well be a harm-reduction product, and for vapers of all ages it currently appears to be so by a substantial margin.
Accordingly, governments not only should stop trying to rid the market of e-cigarettes, but, to the contrary, they should be trying actively to encourage the practice of vaping over smoking. Yet governments at various levels are doing precisely the opposite. Some governments, for instance, are beginning to tax e-cigarettes like regular cigarettes. Still others are trying to make e-cigarettes more difficult to obtain. And many public officials are re-enforcing the widespread, mistaken belief that vaping is as dangerous as smoking.
How might government officials behave differently?
First, instead of taxing e-cigarettes at all, they should sharply increase taxes on regular cigarettes, especially in those states that currently have low cigarette tax rates—that is, those states where smoking rates tend to be highest, such as Kentucky, Missouri, Mississippi and Alabama. To this end, the federal government could conditionally impose a substantial federal per-pack tax—of, say, $1.50 per pack; but the federal law would waive the tax for states that imposed their own tax of at least that sum. Governors in low-tax states could then improve their budgetary situation by convincing state legislatures to increase the state cigarette tax, while conveniently claiming “the feds are making us do this.” Under this approach, the larger the price differential between smoking and vaping, the more people would turn to vaping.
Second, our healthcare systems actively could encourage a switch from smoking to vaping by incorporating vaping into smoking-cessation programs. Under such a revamped program, healthcare providers would be responsible for informing their smoker-patients of the vastly differential risks between regular cigarettes and e-cigarettes. Moreover, for current smokers who enroll in a physician-directed smoking-cessation effort, the program would subsidize the cost of vaping products so as to make them considerably cheaper than they currently are in the free market. Creating an even larger price differential between vaping and smoking, under more informed conditions, should further encourage smokers to try to switch.
Third, FDA could experiment with making cigarettes less satisfying to smokers than vaping. FDA could, for instance, use its authority to require tobacco companies to reduce the nicotine content of cigarettes, which should nudge more smokers toward vaping. In a world of no alternatives, reducing the nicotine in cigarettes is controversial. Some say this would be an invitation to black market and smuggled products with higher nicotine levels or the smoking of even more cigarettes each day. But, with an appealingly cheaper and less dangerous product out there that is more effective in delivering the nicotine that the user wants or craves, a reduction in the nicotine content of cigarettes should help nudge even more smokers to become vapers. FDA alternatively could order other changes with respect to the consumption of cigarettes (for instance, altering the PH level), in an effort to deter smokers from regular cigarettes.
Finally, vaping, along with the patch and gum, soon may not be the only products through which users could obtain nicotine without burning tobacco. Other products currently under development would accomplish the same, and through means that would not involve the user ingesting nicotine vapor. If such products take off, vaping could become a transitional technology, in the way that hybrid cars could become a transitional technology to all-electric vehicles. But that possibility seems further down the line for now.
In the meantime, under the Trump Administration, perhaps vaping will be viewed in a different light.