The Food and Drug Administration (FDA) recently proposed new regulations on electronic cigarettes (“e-cigarettes”), including banning the sale of such products to children under age 18.  But according to more than two dozen state attorneys general, the FDA’s proposed regulations do not go far enough.

In a letter signed by twenty-nine state attorneys general, these states’ top law enforcement officials have recently urged the FDA to adopt stricter regulations aimed at limiting the availability and appeal of these products to children.  Although the long-term health impacts of e-cigarettes are still unknown, the state attorneys’ general are advocating stronger regulations based in part on evidence suggesting the increased use of electronic cigarettes by minors and concerns that such use will lead to adverse health effects and nicotine addiction.

To address what these state attorneys general view as a deficit in the FDA’s proposed regulations, they have proposed, among other changes, two significant additions to the regulatory scheme applicable to the e-cigarette industry. First, they have urged the FDA to prohibit the use of flavors other than tobacco and menthol in e-cigarettes, similar to the provisions of the 2009 Tobacco Control Act which, among other things, banned the characterization of flavors other than tobacco and menthol in traditional cigarettes.  Currently, e-cigarettes are being sold in a variety of fruit and other flavors, such as cherry, vanilla, coffee and coconut. Second, the state attorneys general have pushed for the FDA to subject e-cigarettes to the same advertising and marketing restrictions as are applicable to traditional cigarettes, such as the restriction of television commercials.

Although the comment period for the FDA’s proposed regulations is now closed, it is unclear when the FDA will take final action with respect to these issues.  Whatever the final result, the proposed regulations will have a significant impact on the growing e-cigarette industry, the sales of which are expected to reach $3 billion by 2015.