Troutman Sanders tobacco team partner Bryan Haynes was quoted in an October 29^th Washington Post article titled “Awaiting FDA, states pursue their own e-cigarette rules.”

The article deals with the steps being taken by states to regulate, tax, and even to define e-cigarettes in light of the FDA’s as-yet unpublished proposed rule on the products. Utah, North Dakota, Arkansas and New Jersey, plus the District of Columbia, have already taken the step of including e-cigarettes under the umbrella of the indoor smoking ban. Nine other states, California included, have corralled e-cigarettes in the same pen as “other tobacco products” while others have gone the opposite direction. Alabama and North Carolina define e-cigarettes as an “alternative nicotine product” or  a “vapor product,” respectively.

Only one state taxes e-cigarettes. Minnesota taxes the products at a rate of 95% of their wholesale price – a rate which raises the tax paid on an e-cigarette higher than the taxes paid on a pack of cigarettes in the state. Meanwhile, lawmakers in Oklahoma and Utah unsuccessfully attempted to levy a tax on e-cigarettes equivalent to 10% of their state’s current cigarette taxes.

According to Bryan Haynes, e-cigarettes deserve a class of their own, if any. “The typical rationale for tax policy in the tobacco realm is to recover the social costs of those products,” Haynes states. “If anything, there should be a different category that speaks to the fact that e-cigarettes are fundamentally different from tobacco products.”

To read the full article, click here.

For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 or by email.