Erica Anderson, a health promotion specialist for the Lawrence-Douglas County Health Department, likes to tell a story about a woman who came to one of her workshops eager to talk about electronic cigarettes.
The woman, who was pregnant, said she was in a restaurant when a man at the table next to her started puffing on an e-cigarette, which delivers nicotine to users in a vapor. As the white cloud of vapor wafted over to her, she got up and asked the restaurant owner to tell the man to stop.
“The owner promptly replied that it wasn’t covered under the local ordinance or the state law and so therefore he wasn’t about to ask that particular patron to discontinue use,” Anderson said. “She ended up deciding to leave and not expose herself and her unborn baby to the vapor.”
Kansas’ ban on smoking tobacco products in most public places has been in place since 2010. In those five years, the smoke-free atmosphere of bars, restaurants and other indoor spots has become the norm. Anderson said it’s jarring now to see someone puffing on something in those settings, and she and other health advocates would like to keep it that way.
She plans to be part of an effort next year to get legislators to add e-cigarettes and other “vaping” products to the statewide smoking ban.
“Advocates are going to come out ahead of this issue and really take a look at youth use of e-cigarettes and the modeling and the social norm issues that we are seeing, especially in Douglas County,” Anderson said.
Six Kansas cities already have added e-cigarettes to their local smoking bans. Topeka was the most recent, joining Olathe, Overland Park, Kansas City, Park City and McPherson.
Spencer Duncan, a lobbyist who represents vapor shop owners, said the “dominos” are beginning to fall and momentum is heading toward a statewide ban, although he has not heard much about it from legislators themselves.
Duncan said his work next session will focus mainly on trying to get legislators to reverse course on an e-cigarette tax that is scheduled to go into effect next year.
While he also opposes adding e-cigarettes to the state’s smoking ban, Duncan acknowledged he has “a clear bias.”
“I’m in no hurry to watch the state standardize that sort of ban,” he said. “But I know there’s others who don’t feel that way.”
City leaders who are adding e-cigarettes to their bans are making policy before they have research on the effects of secondhand vapor, Duncan said.
In Topeka, for example, the city council was encouraged to take a “better-safe-than-sorry” approach until the research is in.
Lack of data
The lack of hard data on e-cigarettes, which have been around for only about 10 years, cuts both ways.
Research is beginning to trickle out, but there are pitfalls in using it to reach sweeping conclusions.
Duncan’s clients believe they’re peddling a healthier alternative to traditional tobacco products that can help smokers quit.
“There are people — I know some of them — who have gone to e-cigarettes and quit smoking,” he said.
But Anderson said the anecdotes don’t add up to a substantial study.
“There is actually very little evidence that it helps people quit,” she said.
E-cigarettes can act as a “gateway” to traditional tobacco products, she said, especially for young people. In addition to nicotine, which is addictive, Anderson said e-cigarette liquids contain harmful chemicals and metals that vary by brand and product.
A government-funded study of Los Angeles high school students published last month showed a correlation between those who used e-cigarettes and those who went on to use traditional tobacco products. But the study did not prove any causal link that would establish that e-cigarettes were a “gateway” to the tobacco use.
The United Kingdom’s public health body approved e-cigarettes as a smoking cessation tool last month. The decision was based on a review of research that concluded the products carry a fraction of the health risks of traditional tobacco use.
But that decision has since come under criticism amid reports that the research the regulators examined was funded in part by the e-cigarette industry. Public health experts who analyzed it said the government had made an overreaching conclusion based on flimsy evidence.
FDA regulation pending
The U.S. Food and Drug Administration continues to consider how to regulate e-cigarettes and other vaping products. The process is complicated by the variety of ingredients in various vaping liquids and the quickly changing technology.
The FDA proposed a rule more than a year ago to allow it to regulate e-cigarettes as it does traditional tobacco products. But the rule is still winding its way through the approval process.
Duncan said that adds a legal wrinkle for ongoing attempts to incorporate e-cigarettes into local smoking bans.
Because the state and federal government do not regulate e-cigarettes, Duncan said, his group does not believe anyone in Kansas has the legal authority to ban them.
“The reason the courts allowed smoking bans is they were regulated products that had a clear and well-defined danger from secondhand smoke,” he said.
Duncan said a 2011 legal opinion http://ksag.washburnlaw.edu/opinions/2011/2011-015.pdf from Kansas Attorney General Derek Schmidt bolsters his group’s case, and members of his group are interested in mounting a legal challenge.
The end of the opinion states that in order to add e-cigarettes to the state smoking ban, which is called the Kansas Indoor Clean Air Act, legislators first would have to reopen the 2010 legislation and change the definitions of “cigarette” or “smoking” to make them broader.
Jennifer Rapp, a spokesperson for Schmidt’s office, said the opinion speaks for itself.
In 2013, a group of attorneys general from 40 states sent a letter to the FDA, urging it to regulate e-cigarettes the same way it does traditional tobacco products.
Schmidt was not among them.
“Attorney General Schmidt believes it is a policy decision for the Legislature to make,” Rapp said in an email.
Andy Marso is a reporter for KHI News Service in Topeka, a partner in the Heartland Health Monitor team.
