MARKETING, FEDERALISM, AND THE FIGHT AGAINST TEEN E-CIGARETTE USE: ANALYZING STATE AND LOCAL LEGISLATIVE OPTIONS.

• Author: Hurst, Anne

CONTENTS INTRODUCTION I. FEDERAL REGULATION AND THE E-CIGARETTE DILEMMA A. The E-Cigarette's Health Threat to Teens B. The Risk of Hoping for Harm Reduction in Adults II. MARKETING AS BIG TOBACCO'S WEAPON A. A History of Targeting Teens B. How States and Localities Fought Back III. ROADBLOCKS TO STATE AND LOCAL REGULATION OF E-CIGARETTE MARKETING A. Federal Preemption Under the Tobacco Control Act B. Dormant Commerce Clause IV. PROPOSAL FOR STATE AND LOCAL LEGISLATION TO COMBAT E CIGARETTE MARKETING A. Product 1. Flavors 2. Format 3. Quality and Safety B. Price C. Placement D. Promotion CONCLUSION INTRODUCTION

A marketing report at R.J. Reynolds once said that "[y]ounger adult smokers are the only source[s] of replacement smokers" and that "[i]f younger adults turn away from smoking, the industry must decline, just as a population which does not give birth will eventually dwindle." (2) The cigarette industry, which peaked in the golden age of marketing of the 1960s, (3) has historically relied on marketing to attract young people to its toxic products. But even though cigarette companies now are severely limited in their ability to market to teens thanks to a settlement agreement with over forty states, (4) and even though the rate of cigarette smoking in the United States is at an all-time low, (5) young people still smoke a nicotine-filled product: the electronic cigarette, or e-cigarette.

The e-cigarette is a danger because it contains nicotine, a substance known to leave life-long detrimental health effects on teens. (6) But the e-cigarette is also regarded as a device to help adults quit smoking traditional cigarettes. (7) The Food and Drug Administration is aware of both of these considerations and has taken some steps to regulate e-cigarettes, but, up until very recently, has been somewhat cautious in its approach, delaying the implementation of some of its e-cigarette regulation until as late as August of 2022. (8)

Regulatory gaps have given the unsafe e-cigarette a window of opportunity to capture teen users. Major health advocacy groups have viewed the FDA's arguably modest actions as a setback to stopping dangerous tobacco marketing. The American Lung Association, conscious of the health threats that e-cigarettes pose to youth, urged the FDA and state legislatures to act swiftly to regulate e-cigarette marketing targeted to teens. (9) The Centers for Disease Control and Prevention warned that legislative avoidance of e-cigarette marketing restrictions would simply undo all the work that has been done to prevent tobacco use among youth. (10)

Enough is known about the relationship between young persons, nicotine, and tobacco marketing to warrant additional action in light of the teen e-cigarette "epidemic." (11) This Note proposes that states and localities should regulate marketing through laws that target the product, price, placement, and promotion of e-cigarettes to prevent youth use. This Note will first examine the health policy debate surrounding e-cigarettes and the FDA's stance on e-cigarettes. Secondly, this Note will provide background on the role marketing plays in encouraging teen tobacco use, setting the stage for why further state and local legislation targeting e-cigarette marketing is advisable. Thirdly, this Note will examine how the federalism issues such as preemption under the Family Smoking Prevention and Tobacco Control Act ("TCA") (12) and the Dormant Commerce Clause threaten the ability for states and localities to enact legislation regarding e-cigarettes. Finally, this Note will recommend potential actions that states and localities could take to protect young persons from e-cigarettes while anticipating these federalism concerns.

1. FEDERAL REGULATION AND THE E-CIGARETTE DILEMMA

   E-cigarette regulation is a relatively recent development. (13) Congress granted the FDA authority to regulate tobacco products under the TCA in 2009. (14) In May 2016, the FDA finalized the so-called "deeming rule" that gave the agency authority to regulate e-cigarettes, (15) a product category that generally includes devices that have battery-powered heating elements, cartridges for liquid nicotine and other chemicals, and atomizers that heat the e-liquids into inhalable vapor. (16) Although e-cigarettes are not "tobacco products" per se, the nicotine in e-cigarettes comes from tobacco; thus, e-cigarettes were deemed to qualify as "tobacco products" that could be subject to the TCA. (17) Because of the deeming rule, e-cigarette manufacturers and retailers were made subject to a variety of federal regulations related to the production, marketing, and sale of e-cigarettes. (18)

   In July 2017, the FDA changed course on e-cigarettes and announced that it would delay implementation of parts of the deeming rule. The announcement touched on the FDA's plan to further evaluate the dangers of nicotine and to develop a "comprehensive nicotine regulatory plan premised on the need to confront and alter cigarette addiction." (19) The FDA alluded to what its regulatory plan might include, such as reducing the nicotine content in traditional cigarettes rather than in e-cigarettes, or regulating predatory marketing and sales techniques, such as flavored e-cigarettes that target teenage consumers, (20) but ultimately left its roadmap for e-cigarette regulation ambiguous at the time.

   In late 2018, FDA Commissioner Gottlieb reiterated hopes that the e-cigarette could be a harm reducer for traditional cigarette users, but also expressed a heightened concern for teens' growing use of e-cigarettes. He asked the e-cigarette industry to be proactive in preventing youth vaping, but also warned of potential actions the FDA may take to halt teen e-cigarette use, including limitations on the availability of flavors and stricter sales channels. (21) At the time of writing this Note, however, these heightened e-cigarette restrictions remain merely prospective. No further rules have been announced. (22)

   1. The E-Cigarette's Health Threat to Teens

      In recent years, e-cigarettes have proven to be teenagers' smoking product of choice. E-cigarette use among high school students skyrocketed 900 percent from 2011 to 2015, (23) and e-cigarettes were the most common form of tobacco used by youth in the United States as of 2016. (24) Over two million youths used e-cigarettes in 2017. (25) And 2018 saw an additional spike, with recent statistics showing a 78 percent increase in e-cigarette use among high schoolers and a 48 percent bump among middle schoolers. (26) This recreational use of e-cigarettes among teens is problematic because e-cigarettes pose health risks that are not fully advertised. While the full extent of the health risks is not known at this time, (27) that does not mean that e-cigarettes are harmless or less worthy of regulation.

      E-cigarettes threaten young people with a variety of known harms. E-cigarettes contain nicotine, which, while dangerous to the population in general, poses a specific risk to teens. Nicotine has structural effects on the brain--which is concerning because teens' brains are still developing--and these structural changes can lead to a deeper, stronger addiction that makes it harder to quit smoking. (28) Nicotine use in teens is also linked to "mood disorders, attention and cognition disorders, and drug-seeking behaviors." (29) And while e-cigarettes have been touted by some as less risky than traditional cigarettes because they lack many of the cigarette's toxic ingredients, (30) there is a growing body of research demonstrating that teens are being exposed to the same cancer-causing chemicals in e-cigarettes that exist in traditional cigarettes. (31) Further, many young persons are unaware that e-cigarettes even contain nicotine. (32)

      Notwithstanding the health risk of e-cigarettes alone, e-cigarettes pose additional threats as "gateway drugs" to traditional cigarettes. (33) There is a strong biological link between nicotine consumption in teens and future dependent use of substances. (34) Experts also see social risks, fearing that societal acceptance of e-cigarette smoking will renormalize and, thus, encourage youth smoking of traditional cigarettes. (35) A study of teens over a span of three years showed that teens who used e-cigarettes in the past month were seven times more likely than nonusers to smoke traditional cigarettes in the subsequent year. (36) This is a serious danger as the risks of traditional cigarettes are unquestionably known and have claimed the lives of over twenty million Americans. (37)

      Finally, young persons are particularly susceptible to the threat of e-cigarettes because the initiation of smoking is strongly linked to the teen and young adult age bracket. Ninety percent of adult smokers started smoking before they turned eighteen. (38) The odds are that if a person has not smoked by the age of twenty-six, then that person will never smoke, as approximately only 1 percent of smokers begin after that age. (39) Therefore, teens and youth are in a critical age bracket worthy of protecting to prevent the development of a new generation of smokers.

   2. The Risk of Hoping for Harm Reduction in Adults

      Those opposed to e-cigarette regulation argue that e-cigarettes could be beneficial to adults trying to quit traditional cigarettes, as current and former smokers make up the majority of the population of e-cigarette users. (40) E-cigarettes are convenient for those looking to quit smoking for several reasons. The act of vaping mimics the act of smoking traditional cigarettes, e-cigarettes can be used in the presence of others without extensive intrusiveness due to the reduced secondhand smoke, and they pose far fewer health risks than traditional cigarettes while still providing nicotine. (41) E-cigarettes are, at the very least, less harmful than traditional cigarettes in that they lack some of the toxic and carcinogenic agents contained in traditional cigarettes...