By Yda van Aartsen
Will electronic-cigarettes or e-cigarettes prevent people from smoking cigarettes? Are we just replacing one harmful device, namely, regular tobacco cigarettes, with another harmful and toxic device?
These questions make legal minds struggle all around the world. In recent years the e-cigarette industry became a 3 billion dollar industry, with approximately 466 different brands of e-cigarettes on the market worldwide (Olivia Rose-Innes ‘E-cigarettes – the slow way to poison yourself?’ www.news24.com, accessed 26-7-2016).
I will summarise the general impact and views of e-cigarettes, the health implications thereof, the regulation by legislation, the regulatory struggle and recent developments in legislation.
Composition of e-cigarettes
The one major difference between the two alternatives is that cigarettes contain tar, while e-cigarettes do not. This, however, does not mean that e-cigarettes are not harmful. The smoking of an e-cigarette will cause the heating of a liquid, which consists of nicotine, tobacco-specific nitrosamines, tobacco alkaloids, aldehydes, propylene glycol and/or glycerine, metals, volatile organic compounds and flavouring agents (Lauren K Lempert, Rachel Grana and Stanton A Glantz ‘The importance of product definitions in US E-cigarette laws and regulations’ https://tobacco.ucsf.edu, accessed 4-11-2016).
The similarities between e-cigarettes and regular tobacco cigarettes are that both contain nicotine, which is addictive and also a harmful toxin. Although different brands of e-cigarettes contain different amounts of nicotine when consumed, more surprising is that e-cigarettes also contain the toxic compound, which is found in anti-freeze (‘Summary of results: Laboratory analysis of electronic-cigarettes conducted by FDA’ www.fda.gov, accessed18-7-2016). Another problem is that the labels on e-cigarettes are very misleading as to the levels of nicotine actually contained in the product (see table below):
| Study conducted by: | Matrix: | Deviation from label: |
| Goniewics | Refill solution | -75% to 28% |
| Kirscner | Refill solution | -50% to 40% |
| Cameron | Refill solution | -66% to 42% |
| Cheah | Cartridge | -89% to 105% |
| Trehy | Refill solution | -100% to 100% |
| Cartridge | -100% to 100% | |
| Cobb | Cartridge | -80% to 77% |
(Tianrong Cheng ‘Chemical evaluation of Electronic-cigarettes’ www.tobaccocontrol.bmj.com, accessed 2-8-2016).
Health outcomes
E-cigarettes have an inflammatory effect on the epithelial cells lining the inside of the lungs. Even without the nicotine in the e-cigarettes, the other substances in e-cigarettes cause harm to these cells and make them more susceptible to infections, especially in younger persons (‘Link between e-cigarettes and respiratory infections’ www.health24.com, accessed 19-7-2016).
The carcinogen formaldehyde, contained in e-cigarettes, can be up to 15 times more toxic and cancer causing when consumed with higher voltages vapour released in e-cigarettes (‘Watch out for cancer-causing formaldehyde in new generation e-cigarettes’ www.health24.com, accessed on 19-7-2016).
Other health issues is that nicotine has a stimulating effect on the cardiovascular system, increasing the blood pressure and heart rate and it carries risk of negative effect on foetal development. There is no research showing that a regular inhalation of vapour into our lungs can have any long term benefits to our health (Rose-Innes (op cit)).
We should consequently not substitute tobacco containing cigarettes with e-cigarettes for the reason that they are healthier to smoke. They may cause more harm than regular tobacco cigarettes.
Regulations and legislation
While the smoking of tobacco products are prohibited in any public area, the smoking of e-cigarettes are not specifically prohibited by legislation. Linda Curling, a pharmacist from the Poison Information Centre at Red Cross Children’s Hospital said that there seems to be a ‘fairly high use’ in the young adult population of South Africa, which is a severe concern for them (Rose-Innes (op cit)).
Smokers use e-cigarettes as a device to assist them to quit smoking regular tobacco cigarettes. There is, however, no long term study showing that this is true. The only studies done so far, shows that after six to 12 months on e-cigarettes, smokers could not be cured from their tobacco cravings and were still smoking regular tobacco cigarettes (Brandel France de Bravo, Sarah Miller, Jessica Becker and Laura Gottschalk ‘Are e-cigarettes safer than regular cigarettes?’ www.stopcancerfund.org, accessed on 18-7-2016). The result is that e-cigarettes have created a population of dual-smokers, and access to smoking to the younger population, who cannot purchase regular tobacco cigarettes. Mark van der Heever, Deputy Director of Communication for the Western Cape Department of Health, stated that e-cigarettes renormalised smoking. Resultantly, the province is seriously looking at amendment to the current tobacco legislation to prevent this trend from continuing (Rose-Innes (op cit)).
E-cigarettes should thus not be excluded from tobacco products legislation, as this will undermine the intention of the legislator of tobacco legislation (Lempert et al (op cit)).
E-cigarettes in the United States (US)
After several years of uncertainty, the District of Columbia Circuit Court assisted with this dilemma when it gave judgment in the matter of Sottera Inc v US Food & Drug Administration 627 F.3d 891 (D.C Cir 2010). The question was whether e-cigarettes should be regulated by the same regulations as tobacco products by the Food and Drug Administration (FDA) or under the Tobacco Act.
The e-cigarette manufacturers argued that their products were promoted as being for ‘smoking pleasure’, rather than therapeutic or for smoking cessation. Because the product was not promoted to be falling in the ‘therapeutic’ category, it does not fall within the ambit of the group of products, which the FDA could regulate.
The court decided that e-cigarettes could not be regulated under the FDA’s drugs/devices authority unless they are ‘marketed for therapeutic purposes,’ and also not regulated under FDA’s tobacco product authority, unless FDA deems them to be ‘tobacco products’. This was affirmed by the Appeal Court.
Congress already promulgated Family Smoking Prevention and Tobacco Control Act in 2009 to regulate all tobacco products, as well as e-cigarettes containing tobacco derivatives (‘Family Smoking Prevention and Tobacco Control Act of 2009’ www.govtrack.us, accessed 4-11-2016).
Regulation and legislation of e-cigarettes in the US
Imperative to the solution to regulate e-cigarettes and keep intact the anti-smoking legislation, is to include e-cigarettes in the definition of ‘tobacco products’, or to include in the definition of ‘smoking’ the smoking of e-cigarettes. This will automatically subject e-cigarettes under the same anti-smoking legislation, regulations and tax. By June 2014 there were already 46 laws in 40 states of the US, which established a proper definition for e-cigarettes and the health advocates in the US are fighting to include e-cigarettes in all ‘clean air and tax laws’ as a ‘tobacco product’ or ‘product derived from tobacco’. The onus will then fall on the tax payer to demonstrate that their products do not contain a tobacco derivative to be excluded from tobacco taxes (Lempert et al (op cit)).
Other parts of the world on e-cigarettes
The World Health Organisation (WHO) described the uncertainty about the regulation of e-cigarettes as a ‘loophole’ to legally use nicotine, a tobacco derivative. Switzerland, Brazil and Singapore have banned indoor smoking altogether, while Canada and France have regulated their use (Sheree Bega and Kashiefa Ajam ‘Bid to stub out all smoking’ www.iol.co.za, accessed 19-7-2016). The WHO also indicated that e-cigarettes should be categorised either as tobacco products, or used for prescribed medicinal purposes. The American Heart Association and the European Respiratory Society concurred herewith.
Britain is the only country (so far) to take a different approach towards e-cigarettes. During 2015 the British have welcomed the use of e-cigarette as a healthier and safer alternative to regular tobacco cigarettes, which does not carry the health risks associated with regular tobacco cigarette smoking. They would like to get it licensed to be used as a cure for smoking (‘UK health officials endorse e-cigarettes’ www.health24.com, accessed 19-7-2016).
Certainly, this worldwide dilemma is causing the opposing views on e-cigarettes, will only be resolved after the long effects of e-cigarettes are studied.
E-cigarettes in South Africa (SA)
Due to the nicotine composition of different e-cigarettes of the same brand and batch differing from cigarette to cigarette, complicates the process of defining e-cigarettes in a single ‘all including’ category or group (Lempert et al (op cit)).
Twisp, SA’s largest e-cigarette distributor promotes their product as available in ‘all major shopping centres’ in SA. Their glamorisation of their product certainly attract more e-cigarette consumers. Interesting to note is that their product is not advertised as an anti-smoking device, neither to assist smokers to quit smoking. Twisp promote their ‘unique’ product to be available in different flavours to ‘tantalises all your senses’ (www.twisp.co.za, accessed on 26-7-2016). It might be argued that this suggests the product is marketed for enjoyment purposes.
The Medicines and Substances Related Act 101 of 1965 was amended in 2012 to state that e-cigarettes are scheduled devices that should be bought only from a pharmacy with a doctor’s prescription. Unfortunately, the e-cigarette distributors found a loophole around this, by selling e-cigarettes over the counter in any shopping mall by not mentioning that e-cigarettes can be a therapeutic device, have health benefits, or help with smoking cessation (Rose-Innes (op cit)).
With these controversial views, SA’s Minister of Health, Aaron Motsoaledi, has taken a firm stand against e-cigarettes and indicated that he will push for new legislation against all forms of smoking of e-cigarettes in 2016 (Bega and Ajam (op cit)).
The Tobacco Products Control Act 83 of 1993 (the Act) does not include any specific reference to e-cigarettes, and currently reads as follows:
‘…a product containing tobacco that is intended for human consumption, and includes, but is not limited to, any device, pipe, water pipe, papers, tubes, filters, portion pouches or similar objects manufactured for use in the consumption of tobacco… .’
The promotion of e-cigarettes also relates to s 3(1)(a) of the Act:
‘No person shall advertise or promote, or cause any other person to advertise or promote, a tobacco product through any direct or indirect means, including through sponsorship of any organisation, event, service, physical establishment, programme, project, bursary, scholarship or any other method.’
It can be assumed that e-cigarette advertisements, promoting e-cigarette smoking, will cause the public to have an increased tendency to have a more positive attitude towards buying of tobacco products as well (SE Adkison, RJ O’Connor, M Bansal-Travers, A Hyland, R Borland, HH Yong, KM Cummings, A McNeill, JF Thrasher, D Hammond and GT Fong ‘Electronic nicotine delivery systems: International tobacco control four-country survey’ www.ncbi.nlm.nih.gov, accessed 19-7-2016).
Effects of e-cigarettes on non-smokers
E-cigarette smoke cause a visible vapour that is able to be smelled by non-smokers depending on the flavours and other contents of the fluid. The vapour is discharged into the air only when the user exhales. This is in contrast to regular cigarettes that discharge smoke continuously while kept alight, and when the user exhales. Research shows that e-cigarette smoke can cause a 20% increase in the concentration of polycyclic aromatic hydrocarbons in the air of a ventilated room, after volunteers smoked e-cigarettes for two hours in the room (‘E-cigarette vapour exposes people sharing a room with an e-cigarette user to contaminants, including nicotine, particulates and hydrocarbons’ www.treatobacco.net, accessed 27-10-16). The new trend to smoke e-cigarettes due to their advantages, causes more people to smoke them indoors, for example, in shopping malls, churches, offices and their own homes. Although e-cigarettes do not contain the harmful smoke of regular cigarettes, there are still very harmful emissions, which can cause health issues to non-smokers. The vapour, or aerosol, contains different concentrations of nicotine, ultrafine particles and low levels of toxins that are known to cause cancer (‘Electronic Smoking Devices and Secondhand Aerosol’ www.no-smoke.org, accessed 27-10-2016).
There is currently no research at all that proves that second hand smoke of e-cigarettes emissions are safe for non-users (Ingrid Torjesen ‘E-cigarette vapour could damage health of non-smokers’ www.bmj.com, accessed 27-10-2016).
Discussion and conclusion
Not all e-cigarettes contain nicotine or the same concentrations of nicotine, making it difficult to regulate all e-cigarettes under one ‘all inclusive’ ban. The issue with e-cigarettes is that the absence of tar causes it to be less harmful in certain instances but it is more harmful if smoked at high voltages (‘Watch out for cancer-causing formaldehyde in new generation e-cigarettes’ (op cit)).
My opinion of the only feasible solution to this dilemma is to regulate e-cigarettes on two levels:
The reality is, that all tobacco and tobacco-related product consumption contain risks to develop cancer and other health issues. Simply put, it causes the same harm as regular tobacco cigarettes and should be regulated accordingly.
Yda van Aartsen BHSc (Wits) LLB (Unisa) is an advocate at the Island Group of Advocates in Johannesburg.
This article was first published in De Rebus in 2016 (Dec) DR 36.
