Under the Patient Protection and Affordable Care Act (the “Affordable Care Act”) (also known as “ObamaCare”), which became law in 2010, health insurance companies may charge smokers and tobacco users more than those who do not smoke or use tobacco.  Specifically, smokers and tobacco users may be charged up to 50 percent more.

This distinction in prices for smokers and tobacco users raises numerous questions.  What is the definition of a “smoker” under the Affordable Care Act?  What is the definition of “tobacco use” under the Affordable Care Act?  Are users of electronic cigarettes covered?

The Affordable Care Act does not define “smoker” or “tobacco use.”  The Department of Health and Human Services has issued regulations to determine which insureds may be subject to increased premiums.  In particular, the regulations provide that “tobacco use” means “use of tobacco on average four or more times per week within no longer than the past 6 months.”  The definition includes “all tobacco products, except that tobacco use does not include religious or ceremonial use of tobacco.”  Additionally, “tobacco use must be defined in terms of when a tobacco product was last used.”

Insurance companies could conceivably attempt to lump e-cigarette users into the group of individuals subject to higher insurance rates.  Insurance companies could argue that e-cigarette consumers meet the definition “tobacco use” if they, among other things, use an e-cigarette four or more times per week.

However, unlike cigarettes which contain tobacco, e-cigarettes do not themselves contain tobacco.  E-cigarettes may contain nicotine derived from tobacco, but their composition is entirely different than that of cigarettes and other tobacco products.  Additionally, e-cigarettes may not necessarily contain nicotine derived from tobacco.  Other e-cigarettes do not contain nicotine at all – let alone nicotine derived from tobacco.

Because e-cigarettes do not contain tobacco, it would appear that e-cigarette consumers are not subject to higher premiums under the Affordable Care Act.  However, like many emerging issues involving this new technology, the issue could be the subject of future litigation.  The FDA’s recent proposal to assert jurisdiction over e-cigarettes as “tobacco products” could fuel the debate, although the Tobacco Control Act’s definition of a “tobacco products” – including products made or derived from tobacco – does not necessarily equate to the undefined term “tobacco use” under the Affordable Care Act.

Like the debate over whether government regulations should equate e-cigarettes with traditional tobacco products, health care providers will need to wrestle with whether e-cigarette users should be treated on par with tobacco users, or placed in their own category.  Given the emerging evidence that e-cigarettes are likely a much better alternative to traditional tobacco products, the policy rationale for charging higher premiums to tobacco users would seem inapplicable to e-cigarette users.

For questions and/or comments, please contact Bryan Haynes, Troutman Sanders Tobacco practice partner, at 804.697.1420 or by email.