Arizona Senate Committee Votes To Regulate Vapes Like Cigarettes

By Howard Fischer, Capitol Media Services
Published: Thursday, January 24, 2019 - 5:12pm
Updated: Friday, January 25, 2019 - 8:29am

Hoping to curb teen use, Arizona lawmakers are moving to put new restrictions on where and how vaping devices can be sold.

Without dissent, the Senate Committee on Health and Human Services voted Wednesday to classify both the devices and the liquids that they burn as tobacco products. That would make them subject to all the same restrictions in Arizona law as cigarettes.

The approval of SB 1009 came over the objections of Gibson McKay, lobbyist for the Vapor Technology Association which represents manufacturers, wholesalers and business owners who market the devices.

McKay said his members have no problem with imposing new restrictions on youth purchases. In fact, he has convinced Rep. T.J. Shope, R-Coolidge, to sponsor industry-crafted legislation imposing penalties on those who would furnish these devices to minors.

But McKay said they don't want to be lumped in the same category as tobacco products.

One big issue is that Arizona law forbids the sale of cigarettes online. McKay does not want a similar restriction on vaping devices.

And he fears that such a change could make the devices subject to the same taxes now imposed on tobacco products.

That, he said, undermines the whole purpose behind vaping devices.

"We're not tobacco,'' McKay told lawmakers. "We vaporize a product that is glycerin.''

That product, he acknowledged, has nicotine in it. And that chemical, said McKay, may very well come from tobacco products.

But McKay said it's the other chemicals in tobacco smoke that cause cancer and other lung diseases. And he cited a 2015 report by Public Health England that said e-cigarettes are 95 percent less harmful than smoking.

That, McKay said, is why it should be seen not as a health risk but as a method to help adults quit smoking — and why it should not be regulated in Arizona like tobacco.

Sen. Heather Carter, R-Cave Creek, is pushing for the additional regulation. She said if e-cigarettes were truly designed to help people quit, then the industry would have registered it as a medical device with the federal Food and Drug Administration. With that classification, Carter said, it would be exempt from Arizona law and could be sold online, just like nicotine gums and patches.

"You can't have it both ways,'' she told McKay, who could not provide a reason that his clients have not sought such approval other than the possible regulatory delay.

What that leaves, said Carter, is the explosion in youth vaping.

Andrew LeFevre, executive director of the Arizona Criminal Justice Commission, said the latest survey of teens show more than 25 percent of high school seniors reported using a vaping device in the past 30 days, what he said is an indicator of regular use.

Sen. Tyler Pace, R-Mesa, pointed out that at least some seniors are 18 or older, people who can legally purchase and use these products. LeFevre admitted his survey did not break down the data by age group.

And Pace said he was not convinced that the real problem is online sales.

He detailed how he personally tried to order a device that way, saying it was "significantly difficult'' with the age verification demanded by sellers. By contrast, Pace said he had no problem ordering a bottle of wine on the internet in just a few minutes, something allowed under Arizona law.

Committee members also heard from Michael Felling who told his own story of starting to smoke at age 11 and quitting 36 years later, with the help of vaping devices, after it was clear that his second-hand smoke was affecting his wife's health.

"I see these two products as being extremely different,'' Felling said. And he told lawmakers that any move to reclassify vaping products as tobacco is likely to lead to higher taxes.

While the legislation did get unanimous committee approval, several lawmakers suggested that they want it amended when it goes to the full Senate to continue to allow internet sales to adults.

"It's one thing when we're talking about teenagers,'' said Sen. Rick Gray, R-Sun City. "It's another thing when you're talking about grown adults.''

Carter indicated she's willing to alter the bill to accommodate adults — but with a much more vigorous age verification than exists now.

She said that's important because it's likely that teens will be looking more to online sales in the future.

Carter pointed out that the FDA recently imposed rules designed to keep retailers from selling flavored vaping liquid refills, the kinds that would be most attractive to minors. That, she said, leaves online as the sole source for these liquids

Sen. Kate Brophy McGee, R-Phoenix, who chairs the panel, said she's opposed to the industry-crafted HB 2073, the one Shope is sponsoring, not so much for what's in it but the fact that it does not subject to vaping devices to the same restrictions as tobacco.

She said that simply repeats the mistake lawmakers made in 2013 when they agreed — with her and Carter dissenting — to create a special category for restricting vaping devices separate from tobacco. The result, she said, is the sharp increase in teen use as those laws have not kept pace with changes in vaping technology.

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