The FDA has not yet responded to the letter, but aims to unveil proposed regulations for e-cigarettes sometime in October. "FDA is moving to release for public comment a proposed rule to regulate additional categories of tobacco products," FDA spokesperson Jennifer Haliski told U.S. News. "FDA cannot comment on the contents of the proposed rule."
The latest push for regulation was boosted by data released Sept. 5 by the Centers for Disease Control and Prevention, which found 10 percent of high school students tried an electronic cigarette at least once. The "current" use rate – defined as use in the preceding month – was 2.8 percent for e-cigarettes. More than 92 percent of high school students who tried an e-cigarette had also smoked a tobacco cigarette, but the CDC did not ask which they tried first. The data was released weeks ahead of corresponding data for conventional tobacco products. Data is not routinely collected on the percentage of students who have ever tried a tobacco cigarette, CDC spokesman Joel London told U.S. News, but it's estimated that between one-third and one-half of students have done so. In 2011, the most recent year for which data is available, the CDC found 18.1 percent of high school students were "current" conventional cigarette users.
Leaders of the Smoke Free Alternatives Trade Association, an e-cigarette industry group, are conducting a "fly in" October 3-4 to meet with federal lawmakers in Washington, D.C.
SFATA President Phil Daman told U.S. News he opposes "simply rolling [e-cigarettes] under the purview of federal and state statutes designed for tobacco products," such as the Tobacco Control Act.
"They do not fit the mold of a tobacco product and the Tobacco Control Act was not created to address issues concerning these types of products," Daman said. "These products are technology products, not tobacco products [and] adult consumers want and should have access to this technology, and a diverse variety of flavors if they so choose.
Amid the frenzied push for new regulation, Daman advises "greater and increased communication between the industry, our elected officials, consumers and the FDA to best understand this new technology so that fair and reasonable regulations, if any, are tailored to what these unique products actually are."
E-cigarettes don't meet the strict definition of a "cigarette" in the Tobacco Control Act, because that law defers to a standing definition of cigarettes as "any roll of tobacco wrapped in paper or in any substance not containing tobacco" or "any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette." But the FDA claims authority to regulate e-cigarettes under a 2010 ruling by the U.S. Court of Appeals for the District of Columbia in Sottera v. FDA. The court said products "made or derived from tobacco" can be regulated as "tobacco products" under the Tobacco Control Act.
Possible regulation of e-cigarette flavors hits a particularly raw nerve for many users. Conley, who blends his own flavor to mimic the taste of Hi-C, observed "flavors are such a big deal for a lot of people, including myself. ... When they're coming out saying, 'these flavored e-cigarettes are targeted to children'," he said, "there are so many people out there who immediately have a visceral reaction because they are using the flavors."