E-cigarette use growing rapidly in Iowa, but regulation lacking

Light up a cigarette in an Iowa restaurant, office or even the Capitol rotunda, and, at best, you'll be told to put it out and, maybe, you'll get slapped with a fine.

Fire up an electronic cigarette in any of those places, and there's no problem.

These must be heady days in the electronic cigarette business.

News accounts are peppered with stories about the “booming” e-cigarette market and manufacturers being bought up by larger operations, such as last week's deal that U.S. tobacco giant Lorillard snapped up a United Kingdom e-cig maker for $50 million and the potential of another $50 million in 2016 if certain financial-performance benchmarks are met.

Unlike their tobacco-stuffed counterparts, e-cigs are not regulated and not subject to tobacco taxes in most states.

Still, changes are coming, as evidenced by the letter signed by 41 attorneys general, including Iowa's Tom Miller, asking the U.S. Food and Drug Administration to to issue rules for e-cigarette regulation by the end of October.

For now, e-cigarettes exist in a legal limbo of sorts, where government is trying to play catch-up to private enterprise.

“There's no current Iowa Department of Public Health position,” said Jerilyn Oshel, interim director of the department's Division of Tobacco Use Prevention and Control. “We're waiting for more research to be done, and we're looking at the (federal Centers for Disease Control and Prevention) and the FDA for guidance.”

Iowa's 2008 Smoke-Free Air Act banned cigarette use in most public places, enclosed places of employment and some outdoor areas. The gaming floors of the state's casinos are a notable exception, as are designated hotel and motel rooms.

“It's not surprising that e-cigarettes aren't covered in Iowa's law, because the law was written, passed and implemented before (e-cigarettes) were really around,” said Kathy Drea, vice president of advocacy for the American Lung Association of Upper Midwest. “One of our main concerns with e-cigarettes is with the vapor they give off. We don't know what the health consequences to that could be. So we're all waiting for the FDA to make a ruling, and that's supposed to be sometime this fall.”

State Rep. Tyler Olson, D-Cedar Rapids, was the floor manager of the Smoke-Free Air Act when it was in the Iowa House. Olson, who is seeking the Democratic nomination for governor, said he's not sure how e-cigarettes should be handled.

“I don't think they have quite the same public health impact. There is nicotine in some, which is cause for some concern, especially when they are marketed to children,” Olson said. “I think the same public conversation would have to take place that did around the time of the Smoke-Free Air Act. The main rationale was because of the $300 million in Medicaid expenses related to smoking and secondhand smoke.”

Gov. Terry Branstad, who had cigarette vending machines removed from state buildings in the 1990s, hasn't given much thought to whether e-cigarette vending machines should be allowed in, spokesman Tim Albrecht said.

“The governor is focused on job creation and visiting all 99 counties and has not made this issue a priority,” Albrecht said.

The executive branch has, however, prohibited state employees from using e-cigarettes on state property, said Caleb Hunter, deputy director at the Iowa Department of Administrative Services.

Visitors to state buildings seem to have an out that state employees don't.

“Our rules only address tobacco products, which are not permitted by anyone. As I understand, e-cigarettes contain no tobacco,” Hunter wrote in an email. “I don't know that we've contemplated it for the public.”

The legislative chambers are subject to their own rules. The Iowa Senate, for instance, allowed smoking in its chamber until 1997, well after the House and the executive branch banned it.

Iowa House Chief Clerk Carmine Boal said it would be up to lawmakers if they wanted to allow e-cigarettes in the chamber and could do so with a majority vote.

“It's an interesting question, but it hasn't come up yet,” said Boal, a former state representative from Ankeny. “We'll see.”

Human Resources departments have been more hesitant to give the all-clear on use of the new nicotine-delivery items. University of Iowa spokesman Tom Moore said e-cigarettes are not covered under the UI's current smoke-free campus policy, but the UI has begun to have campus discussions regarding e-cigarettes.

Pam Tvrdy, with media relations at Cedar Rapids' Rockwell Collins, said its policy does not allow e-cigarettes, and the campus is going smoke-free on Jan. 1.

Not contributing to coffers

While the rules governing where one can use an e-cigarette seem subjective at best, it is clear that Iowa is not making any extra money off the products.

Iowa's cigarette tax does not apply to e-cigarettes, said Iowa Department of Revenue spokeswoman Victoria Daniels. Instead, e-cigarettes are subject only to sales tax.

Cigarette smokers are taxed an additional $1.36 per package of 20 and $1.70 per package of 25 in the state. That's on top of the 6 percent state sales tax.

At least one state - Minnesota - has changed its tobacco law to include e-cigarettes. That change went into effect in August 2010.

Drea, the American Lung Association executive, said one issue states run into when trying to tax e-cigarettes is finding the correct language to cover them all.

“There are more than 250 brands of e-cigarettes out there, and not all of them are made the same, because there is no regulation,” she said. “Since there are a wide variety of products, there's a lot of discussion around how exactly you can do that.”

Asked if he would like to see e-cigarettes taxed like tobacco products, Olson said he wasn't sure.

“I don't have an opinion on that right now,” he said. “I think around the same time of the Smoke-Free Air Act, we raised the cigarette tax for the reasons related to the health risks with secondhand smoke and the health costs to the state. This is a bit of a different calculation.”