Editorial: E-cigarette nontax status contingent on FDA ruling

As with marijuana, the state of Washington is facing another smoking issue that would be a lot easier to resolve if the federal government acted first.

That virtual pack of smokes called electronic cigarettes is the target of state and local governments nationwide that are trying to decide whether to regulate them like a tobacco product. However, two complications arise: First, e-cigarettes have no tobacco; second, the Food and Drug Administration is considering how they should be treated and hasn’t issued a ruling.

E-cigarettes are battery-operated devices with a heating element that vaporizes a nicotine and flavoring solution. The act of inhaling is called “vaping” and its appeal is growing among young people.

The FDA ruling will be critical, because it will determine how e-cigarettes are regulated. If they’re treated like tobacco products, they’ll be subject to regulations on advertising and sales to minors. The fruity flavors – an enticement to youths – could be outlawed. State and local governments could then follow up with their tobacco restrictions, such as the indoor ban on smoking. Furthermore, the state could tax e-cigarettes either like traditional cigarettes or other tobacco products, such as cigars and chewing tobacco.

Without clarification from the FDA, state and local regulation is muddied by the unknown health hazards of a product whose ingredients remain a mystery.

Nonetheless, House Bill 2795, sponsored by Rep. Reuven Carlyle, D-Seattle, would place a 75 percent “tobacco substitutes” tax on e-cigarettes and prohibit their sale to minors. Proceeds would go into the Education Legacy Trust Account.

The bill does not estimate how much would be raised, but the tax is included in the House’s proposed budget.

The need to find revenue to help satisfy the Supreme Court’s order for more education funding makes this bill tempting, but the Legislature should wait on the FDA ruling. If the federal agency decides e-cigarettes pose harm, lawmakers can impose the tax next year.

Preliminarily, the prognosis for e-cigarettes isn’t good, so the industry better plan for heavy regulation and taxation.

Nicotine is addicting, and early research shows that teens who “vape” are more likely to try traditional cigarettes. This “gateway” effect alone could qualify it for tobaccolike status.

The e-cigarette industry claims its product helps people wean themselves from traditional cigarettes, but the FDA hasn’t approved it for that use, and the evidence isn’t strong. Consumer Reports notes that e-cigarettes are about as effective as nicotine patches for smoking cessation and only slightly better than placebo e-cigarettes.

Also up in the air is whether e-cigarettes pose second-hand harm.

E-cigarettes look like a tempting candidate for sin-tax treatment, but it’s too soon to impose a levy. Speedy resolution of vaping’s health implications by the FDA cannot come too soon for budget writers counting on a new source of revenue.