Public Health and Tax Policy On Vapor Devices

May 22, 2017

Public Health and Tax Policy On Vapor Devices

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As vapor products have proliferated, debates over their public health implications have played out across the media and in health journals. Policymakers and citizens have expressed concern that electronic cigarettes may serve as a gateway to traditional tobacco products, particularly among minors.

Conversely, other health professionals and policymakers view vapor products as a viable smoking cessation method for some smokers, contributing to improvements in public health. A number of studies suggest that vapor products can play a significant role in harm reduction by reducing consumption of traditional cigarettes.

What can be stated with certainty is that vapor products differ sharply from traditional incinerated cigarettes in their construction, use, and health risks.

Traditional Cigarettes vs. Vapor Products: Health Risks

The adverse health effects of traditional incinerated cigarettes are well documented. Medical research stretching back at least to the 1960s has linked smoking to lung cancer, heart disease, stroke, and other health problems.

In 1968, the tobacco scientist R.L. Stedman listed 1,200 tobacco and smoke components; by 2009, Alan Rodgman and Thomas Perfetti had identified as many as 8,400, including carbon monoxide, formaldehyde, and ammonia. Some researchers have estimated that there are more than 100,000 chemicals in traditional incinerated cigarette smoke. Growing public awareness of the health implications of smoking contributed to a 50 percent drop in adult current smokers between 1965 and 2011.

Vapor products are generally found to have far fewer harmful chemicals in their composition. Two recent major literature review studies assess concerns about the risk profile of vapor products. The first, published in 2011, is by Zachary Cahn, a professor in the Department of Political Science at UC Berkeley, and Dr. Michael Siegel, a professor at the Boston University School of Public Health.

Their central finding is that “electronic cigarettes show tremendous promise in the fight against tobacco-related morbidity and mortality. By dramatically expanding the potential for harm reduction strategies to achieve substantial health gains, they may fundamentally alter the tobacco harm reduction debate.”

Their review additionally addresses specific chemical concerns as well, with these appearing to be modest in comparison to chemicals in incinerated tobacco. Cahn and Siegel note “Other than TSNAs [tobacco-specific nitrosamines] and DEG [diethylene glycol], few, if any, chemicals at levels detected in electronic cigarettes raise serious health concerns.” They caution that, in an absolute sense, e-cigarettes are not completely risk free, but they are a much better choice than traditional cigarettes.

Another major literature review was published in 2014 by Dr. Konstantinos Farsalinos, a cardiologist and researcher at Onassis Cardiac Surgery Center in Athens, Greece, and Dr. Riccardo Polosa, Director of the Institute for Internal Medicine and Clinical Immunology of the University of Catania in Italy. Their paper reviews 97 studies that examined vapor products. Their overall findings were similar to Cahn and Seigel; that “some residual risk associated with [vapor] use may be present, but this is probably trivial compared with the devastating consequences of smoking.”

According to Farsalinos and Polosa, “the vast majority of the >4000 chemicals present in tobacco smoke are completely absent from [vapor].”

Some have suggested that the levels of tobacco-specific nitrosamines (TSNAs) in vapor products should be cause for concern. However, one study out of New Zealand finds that the levels of TSNAs in a particular brand of vapor cartridge “are 1200 times less than in the tobacco of 20 manufactured cigarettes”.

Another independent review of an FDA report on the chemical components of vapor found that the amount of TSNAs reported was below the limits of quantification. In essence, the FDA and other researchers could not find anything more than trace amounts of TSNAs in e-cigarette vapor.

Vapor products have the potential to be a boon to public health by acting as a less risky alternative to traditional incinerated cigarettes. A recent article in the British Journal of General Practice found that for every million smokers who switched to vapor, 6,000 deaths could be prevented each year in the United Kingdom. Similar gains could be made in the United States, with 4.8 million deaths being prevented over 20 years using vapor products as a major part of a tobacco harm reduction plan.

A recent study out of Italy followed 300 smokers who were not intending to quit over a 12-month period as they switched to using e-cigarettes. By the end of the study, 8.7 percent of the participants ended up quitting smoking entirely, and 10.3 percent had reduced how much they smoked.

These and other findings have prompted the UK government to issue research conclusions around them. In August of 2015, Public Health England, housed in the British Department of Health, released a study finding that vapor products are 95 percent less harmful than cigarettes and should be promoted as a tobacco-cessation method.


While health research is promising, the vapor category is still new, and there have been some growing pains around how the federal government treats the products. In 2014, the Food and Drug Administration (FDA) issued its plan to extend regulatory authority to vapor products. The agency has had authority over traditional cigarette, roll-your-own tobacco, and smokeless tobacco for the last six years, and will extend its authority to vapor products after these plans have been finalized.

States have been less slow to act on vapor products, as a number of states have proposed or enacted taxes on vapor products. In the 2015 legislative session, at least 25 states and the District of Columbia considered legislation to tax vapor products, either as part of a budget proposal or as a stand-alone bill. Ultimately, Louisiana, Kansas, and the District of Columbia enacted such legislation, bringing the total number of states taxing vapor products to five. Additionally, Montgomery County, Maryland, and Cook County and the City of Chicago in Illinois enacted vapor taxes in 2015.

Minnesota and North Carolina began taxing vapor products in 2012 and 2014, respectively. Each of these enacted levies varies in structure and were put in place under different circumstances.

Minnesota was the first state to begin taxing vapor products. On October 22, 2012, the state’s Department of Revenue issued a revenue notice stating that electronic cigarettes, as a “product containing, made, or derived from tobacco” and intended for consumption, fell under the definition of “other tobacco products,” a tax category that in many states includes pipe tobacco, chewing tobacco, and snuff. As a result, they are now taxed at the rate of 95 percent of their wholesale price. In addition to being the first state to tax vapor products, Minnesota remains the only state to do so administratively rather than legislatively.

North Carolina, the second state to tax vapor products, took a different approach. In 2014, the state legislature enacted legislation taxing vapor products at a rate of 5 cents per milliliter of nicotine fluid.

In the 2015 session, Kansas and Louisiana followed suit, adopting variations on the North Carolina approach of taxing by volume. Both states were prompted to impose vapor taxes to help close budget shortfalls; Kansas faced a deficit of nearly $600 million, while Louisiana stared down a $1.6 billion shortfall.  Kansas passed the highest tax rate on e-liquid, taxing it at $0.20 per milliliter. 

One of the principles of sound tax policy is neutrality, the idea that taxes should have equity across different activities so as not to favor one type of business or personal decision over another. Put another way, taxes are designed to raise revenue for government services, not micromanage choices.

In a strict application of this principle, all consumer products would be subject to a broad based consumption tax like a retail sales tax, and additional levies on tobacco, alcohol, and other “sins” have no place.

Some economists make exceptions for special circumstances where they can demonstrate a quantifiable negative externality, or side effect, of the use of a specific product. In the case of traditional incinerated cigarettes, these externalities are largely in the form of the social costs associated with the adverse health effects of smoking.

Frequent smokers tend to develop serious health problems, including lung cancer, chronic obstructive pulmonary disease (COPD), and heart disease. Ultimately, many of the economic costs of these health problems are socialized through government programs such as Medicare and Medicaid.

Tobacco taxes are sometimes justified by economists on these grounds, with cigarette taxes envisioned as a way to not only disincentivize smoking but also to help fund smoking prevention and public health programs. The theory goes that applying a tax to a product of exactly the same size as the externality would help users “internalize” the external costs of smoking.

Electronic cigarettes, with their lower risk profile, are likely to have less external costs associated with their use. Further, to the extent that smoking cessation is a stipulated goal of tobacco taxation, exposing vapor products, which many see as a promising cessation method, to such hefty tax rates as traditional tobacco would be counterproductive.

Entirely separate from externality theory, some would suggest that whatever the tax on traditional tobacco, the most important thing is that taxes on less risky activities are lower, so that users are incentivized, or “nudged,” to make a switch to the less risky activity.

In practice, beyond efforts to internalize the costs of smoking or to shape risky decision making, cigarette taxes are frequently relied on as a politically expedient means of funding for unrelated programs. It is instructive to note that even money derived from tobacco settlements has rarely gone directly to smoking prevention.

Levying taxes on discrete products for general revenue purposes, rather than to deter use or cover specific costs associated with a product or its use, is poor tax policy because it does not conform to any of the aforementioned arguments for excise taxes. As noted tax policy commentator and George Washington University Law Professor David Brunori argues,

Education is a public good. It should be paid for with broad-based, generally applicable taxes. Schools should be important enough to be paid for with real taxes on income, sales, and property. Why foist the cost onto a minority — and given the demographics of those who smoke, a poor minority?

Vapor products are sufficiently new that states are just beginning to grapple with questions of if, and how, to tax them. Their apparent similarity to traditional cigarettes, despite significant areas of divergence, has complicated this debate.

But vapor products and traditional cigarettes work and are measured in fundamentally different ways, and as a result should not be taxed in the same way. Additionally, research demonstrates that vapor products are significantly less harmful than traditional cigarettes, and have potential to serve as a means of tobacco harm reduction.

A sound approach to the taxation of vapor products would avoid discriminating between disposable and rechargeable vapor products; it would avoid extending punitive tax rates from traditional cigarettes to vapor products, and would not hinder consumer opportunities for the use of vapor products as a method of smoking cessation.