IS THIS THE END OF VAPING? A BRIEF HISTORY OF VAPING AND HOW STATES CAN RESTRICT THE FREE MARKET THROUGH EMERGENCY LEGISLATION (2023)

By Zachary B. Luczyk

During the first week of November, Massachusetts health officials confirmed that a third resident had died from vaping related lung injuries. All three have died from the same lung- related illness. This type of emergency demands political moves to keep the public safe, no matter what the harsh economic draw backs are, because there is no price tag that can be placed on human life.

Vaping, the act of smoking a vapor through an electronic cigarette, has gained widespread popularity since 2007. Though, it seems fairly new, vaping and vape products have challenged the tobacco industry since about the 1930s. During this time period, the first patent was issued for an “electronic cigarette.” Roughly 30 years later, the first prototype for an e-cigarette was created, but never reached commercial production. In the 1980s, the first commercially ready e-cigarette entered the United States marketplace but failed shortly after its introduction. Although this early e-cigarette was a failure, the term “vape” was officially adopted into the English Language – solidifying itself in American culture. The failure of early vaping products was likely because these early vapes were bulky, undesirable, and unreliable. Additionally, marketing campaigns stood no match against big tobacco advertisements and vapes were unappealing to the young population.

In 2003, the vaping industry was re-born as the first successfully marketed and commercially produce vape entered the Chinese marketplace. Later, in 2006-07, e-cigarettes were re-introduced into the U.S., and concerns about vaping safety began to emerge. These products were on the market for more than two years, unregulated and unstudied, before the U.S. Food and Drug Administration (“FDA”) took action. The FDA’s focus was on the marketing and advertising campaigns of vaping companies, as they were directed towards America’s youth. In 2009, the FDA warned that some e-cigarettes contained diethylene glycol, while a 2015 study showed some e-cigarettes contained formaldehyde, two very harmful carcinogens. Nevertheless, over the next few years, vaping steadily gained market share, and exploded in 2015, despite studies, with the introduction of products like the Juul.

The Juul has become one of the most identifiable e-cigarettes to date. It has been branded as the “iPhone of vapes,” simply for its sleek, slender, futuristic USB memory stick-like design and portability. It is a rechargeable e-cigarette that is compatible with “Juulpods,” a disposable cartridge that comes in various flavors. Each pack of Juulpods contains the same amount of nicotine as a pack of cigarettes, but without the baggage of the aftertaste and smell. Juul’s popularity increased after heavy advertising campaigns and an influential social media presence. The Juul quickly became popular among all age groups as it became a lifestyle – something that was “cool” to do in public and flaunt on social media, as people caved to social peer pressures.

Unfortunately, in 2019, there have been multiple reports of deaths and unidentifiable incidents of lung disease among teenagers that have left researchers, health professionals, and state legislatures rushing to find an answer. While initially the belief was that these deaths and incidents of lung disease were caused by the chemicals of e-liquids, research has concluded that these deaths and incidents were likely caused by nicotine or marijuana-based e-liquids. Still, to prevent deaths, the government had to step in.

Local and state governments have the power to regulate or pass emergency legislation that is rationally related to health and safety of the public’s well-being. Such action is referred to as state’s “police power.” This power will be held constitutional as long as it does not attempt to regulate a fundamental right and it is rationally related to the goal the legislation seeks to serve (meaning it passes the rational-basis test). One state that has taken such action to combat vaping-related deaths and lung disease is Massachusetts.

(Video) What Vaping Does to the Body

At the end of September 2019, in the midst of a health crisis, Massachusetts Governor Charlie Baker banned the sale of all vaping products, including nicotine and marijuana-based e-liquids. The ban is scheduled to last until the end of January 2020, giving researchers time to decipher the reason behind the deaths and lung disease. This is not the first time Massachusetts has been on the forefront of exercising its inherent power to restrict the use of products associated with heath concerns. In 2004, Massachusetts became concerned with the risks associated with smoking indoors, in response the legislature banned smoking in the workplace, bars, and restaurants.

Although, the vaping ban is of limited duration (four months), vaping-product users and sellers are now asking how the state has the power to ban these products. Besides the Massachusetts Constitution, Governor Baker has statutory authority for the ban under M.G.L. Chapter 12, § 2A which states in pertinent part:

Upon declaration by the governor that an emergency exists which is detrimental to the public health, the commissioner may, with the approval of the governor and the public health council, during such period of emergency, take such action and incur such liabilities as he may deem necessary to assure the maintenance of public health and the prevention of disease.

While the ban seems harsh to some, but necessary to others, Governor Baker’s emergency legislation was a much-needed order, as it protects public safety while researchers further examine the health effects of e-liquids. Unlike cigarette smokers, those who vape can likely exceed their daily smoking intake, because of the portability and discrete smell of vapes. This issue is a major public issue and health concern. There is a reason why years ago the legislature made it illegal to smoke cigarettes in public areas – so why should vaping be treated any differently? The health hazards are a clear concern, and even though some establishments have banned vaping indoors, people still vape. In my personal experience, every time I enter a public restroom or crowded public area, such as a subway, there is someone vaping – sometimes multiple people vaping. The easy accessibility and masking agent of fruit flavors, disguise the stench unlike cigarette smoke. In addition, these characteristics seem to make vaping more acceptable in public as the flavors of e-liquids go unnoticed. Vaping products provide adolescents every opportunity to use these nicotine or marijuana-based products, without being noticed by parents, teachers, or other authority figures. This certainly undermines drug control and poses a significant risk to the public. Even though Governor Baker’s order is only for four-months, I feel the ban should be extended beyond that.

By the end of October 2019, there had been 1,888 reported cases of lung disease associated with vaping (including 37 deaths). Massachusetts is not the only state to take action to ban vape products. To date there are seven states and four cities that have banned, or are considering banning, e-cigarettes. Even President Donald J. Trump has taken an initiative to address issues surrounding the unknown health effects from vaping products. The Trump administration is working with the FDA, which has power under the Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”), to promulgate regulations to ban all flavored types of vaping products, with only allowing two exceptions: tobacco and menthol flavor. Flavored vaping products target adolescents with candy-like taste and eliminate the bad aftertaste for adults to encourage increased use. In addition, competitive prices with packs of cigarettes make the product more appealing.

Recently, the CDC announced a “breakthrough” in researching the outbreak of vaping-related deaths and lung disease. A chemical compound, Vitamin E acetate, is now thought to be the source as the the chemical was found in individuals who sought medical treatment for vaping-related illnesses. Vitamin E, popularly used in facial creams, is normally safe to ingest and use topically, but poses serious risks when it is vaporized and inhaled. When inhaled, the Vitamin E acetate becomes a sticky like substance that clings to the lung tissue, leading to breathing difficulties. In turn, this leads to a decrease in vascular circulation of oxygen throughout the body, leading to long term health risks. Though the CDC believes this may in fact be the cause of illnesses, more detailed research is still required.

The government along with the FDA must put specific regulations in place and warn the public of extreme health concerns on the use of these products. There must be a strong movement from all states to support banning these products until all the risks have been determined and communicated to the public. I believe that the young adult population thinks the use of this product is not only “cool socially” but safe to use. Too many lives are at risk, and we cannot sit back and allow these products to be readily available without a warning of all the consequences of using such a product. If we do nothing then more people are going to die. The tar-like substance thought to be caused by vaping products, sticks to the inside of the lungs, causes difficulty breathing and decreases the oxygen flow to the rest of the body. Just this past week, a Michigan teenager received a double lung transplant because of extensive vaping. The damage that vapes cause to one’s lungs are irreversible, and as a society we need to take action and get all the information regarding the risks of using these vaping products. We need to decide what is more important: the freedom to vape, or life itself.

(Video) Vaping: what people are getting wrong

Zachary Luczyk is a second-year day student at Suffolk University Law School, focusing his studies on Business Law. Prior to beginning law school and following a successful Division I Hockey Career that took him to the Frozen Four, Zach played ice hockey professionally both in the United States and in Europe. A native of Massachusetts, Zach is looking to pursue a career in Corporate and Business Law within the Bay State.

SOURCES

Matti Rose Vagnoni, CommentThe Vapes of Wrath: Why the FDA Should Ban Fruity and Sweet Flavored E-Liquids to Preclude Adolescent use of E-Cigarettes, 71 Admin. L. Rev. 277 (2019).

https://www.masslive.com/news/2019/11/third-person-dies-from-vaping-related-lung-illness-in-massachusetts-health-officials-say.html

https://web.stanford.edu/class/e297c/trade_environment/health/htobacco.html

https://www.cancercouncil.com.au/31899/uncategorized/a-brief-history-of-smoking/

https://www.merriam-webster.com/dictionary/vape

(Video) History of Vaping

http://www.casaa.org/historical-timeline-of-electronic-cigarettes/

https://www.cnn.com/2015/12/31/health/where-we-stand-now-e-cigarettes/index.html

https://www.juul.com/mission-values

https://www.law360.com/articles/1201360/thc-vaping-health-issues-warrant-safety-standards

https://www.usatoday.com/story/news/nation/2019/09/24/vaping-massachusetts-gov-charlie-baker-bans-sale-all-e-cigarettes/2431975001/

https://www.mentalfloss.com/article/23758/7-historical-bans-smoking

https://www.nytimes.com/interactive/2019/health/vaping-illness-tracker.html

(Video) How does vaping work? The science and history explained

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter17/Section2A

https://www.wbur.org/commonhealth/2019/09/25/vaping-products-sale-ban

https://www.npr.org/sections/health-shots/2019/11/08/777646890/cdc-finds-possible-culprit-in-outbreak-of-vaping-related-lung-injuries

https://time.com/5726491/michigan-teen-vaping-damage-lung-transplant/

https://www.theverge.com/2016/7/27/12299784/electronic-cigarettes-e-cigs-chemicals-cancer-fda

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.

(Video) What the CDC Doesn't Want You to Know About Vaping!

Related

FAQs

What is the history of vaping? ›

The e-cigarette was invented in 2003 by Chinese pharmacist Hon Lik, who initially developed the device to serve as an alternative to conventional smoking. In addition to the battery component, an e-cigarette comprises an atomizer and a cartridge containing either a nicotine or a non-nicotine liquid solution.

Is the vaping industry regulated? ›

The TPD and TRPR enforce a range of standards which impact the vaping industry. These include limits to the size of liquid bottles and tanks, mandatory product notification and health warnings featured on packaging. Some elements of these sets of regulations have generated counter-productive, unintended consequences.

What is the law on vaping? ›

Can you vape indoors? Vaping is not prohibited by the smoking ban so, unlike cigarettes, it's not automatically illegal to vape in enclosed public spaces such as bars, restaurants and nightclubs. That means it's the choice of the venue owner whether to allow you to vape.

What impact does vaping have on society? ›

Vaping can lead children and teenagers to start smoking

It can also reduce impulse control for teenagers and even alter their brain development. Studies show that young people who vape regularly are more likely to start smoking than young people who don't vape.

When did vaping become a problem? ›

The estimated number of vapers worldwide jumped from just 7 million in 2011 to nearly 25 million in 2014. By that time, vaping had become so widespread that the Oxford English Dictionary named “vape” its word of the year.

Who was the first person to ever vape? ›

The first person we have on record who made a vaping device was Herbert Gilbert. In 1963, when tobacco smoking was extremely popular, Gilbert was looking for an alternative away from traditional smoking.

Why is vaping not FDA approved? ›

There are no safe tobacco products, including ENDS. In addition to exposing people to risks of tobacco-related disease and death, FDA has received reports from the public about safety problems associated with vaping products including: Overheating, fires, and explosions.

Why vapes should be regulated? ›

The World Health Organization (WHO) has called for the regulation of e-cigarettes to focus on four aspects: discourage the promotion of e-cigarettes to non-smokers and young people; reduce the potential health risks to e-cigarette users and non-users; prohibit the promotion of unproven health claims regarding e- ...

Is it OK for a 13 year old to vape? ›

Vaping is bad for teens because it can cause extreme nicotine addiction, loss of concentration, lung illness, increased heart rate and blood pressure, and damage to the immune system.

Can you vape in a car with a child? ›

Yes: as set out above, it is legal to smoke in your car, even if there are under 18s in it. Do bear in mind you can still face a careless or even dangerous driving charge if vaping distracts you from driving.

What age is it legal to vape? ›

The short answer is no; anyone under the age of 18 cannot legally purchase any vaping equipment, including eliquids and devices, therefore should not be able to vape before this age.

Can I vape in the house with a baby? ›

It's not safe to use vape pens or e-cigarette devices around kids. The vapor from e-cigarettes has chemicals in it that can be harmful to kids. There's another serious problem with e-smoking devices: Kids can get poisoned if they drink the liquid in nicotine delivery devices or refills.

Does vaping make you lose weight? ›

In short, no, vaping does not help you lose weight. Although E-Liquids contain nicotine that can suppress your appetite, it does not actively take part in helping someone lose weight. But, in the event a smoker looking to quit cigarettes, chooses to swap vaping, they may notice that it helps them maintain their weight.

Does vaping have any positive effects? ›

The e-liquids used in these devices are less harmful and do not leave any residue, such as tar, in your lungs. Also, it does not affect people and around you when you smoke. Vapes help in reducing your blood pressure, improve your immunity, ease your breathing, and also, make your lungs function normally.

How many kids are vaping? ›

2022 Findings on Youth E-Cigarette Use

14.1% (2.14 million) of high school students and 3.3% (380,000) of middle school students reported current e-cigarette use.

How many deaths did vaping cause? ›

As of January 2022, the state of California has reported at least 40 cases on their update page, that were diagnosed after February 2020.
...
2019–2020 vaping lung illness outbreak
First outbreak2019
First reportedApril 2019
Confirmed cases2,711
Deaths61
4 more rows

Why is vaping under threat? ›

E-cigarettes typically contain nicotine as well as other chemicals that are known to damage health. For example, users risk exposing their respiratory systems to potentially harmful chemicals in e-cigarettes.

How many cigarettes is 600 puffs? ›

Each Elf Bar 600 disposable device provides up to 600 puffs, which is equal to approximately 45 cigarettes.

Why do teens vape? ›

addiction, they like the “hit” they get from nicotine. appealing flavors (e.g. fruit, candy, dessert) devices are seen as trendy, or a status symbol. they consider vaping “harmless” and “safer than smoking” in order to quit or cut down on smoking.

Is vaping worse than smoking? ›

1: Vaping is less harmful than smoking, but it's still not safe. E-cigarettes heat nicotine (extracted from tobacco), flavorings and other chemicals to create an aerosol that you inhale. Regular tobacco cigarettes contain 7,000 chemicals, many of which are toxic.

What states are banning Vapes? ›

The move makes California by far the largest state to ban such products, which are already illegal in a smattering of smaller states, including Rhode Island, New Jersey, and Massachusetts.

Who passed the vape bill? ›

Congress ratified the vape bill in January. According to the Official Gazette, an approved bill becomes a law if the President does not sign it within 30 days from the date of receipt.

Are vapes banned in the US? ›

Laws regulating the use of electronic cigarettes, also known as "vaping", vary across the United States. Some states and municipalities prohibit vaping in every location where smoking is prohibited, while others contain more permissive laws or no laws at all regarding vaping.

Is vaping considered smoking? ›

Vaping is not smoking, but some people find vaping works to help them quit because it offers experiences similar to smoking a cigarette. Vaping has a similar hand-to-mouth action as smoking, and it can also be social.

Is the FDA regulating vapes? ›

FDA PRIORITIZES ENFORCEMENT AGAINST CERTAIN ILLEGALLY MARKETED ENDS. FDA's scientific review of vaping products ensures they are appropriate for the protection of public health. The agency continues to monitor the marketplace to protect youth from certain illegally marketed ENDS products.

How can the government stop vaping? ›

State and federal policymakers are focusing on two key policies for preventing vaping among young people: minimum sales age laws that restrict the sale of e-cigarettes to adolescents and bans on flavored e-cigarettes. Some states have also implemented e-cigarette taxes (see table).

Is vaping an ethical issue? ›

Admittedly, vaping raises another ethical consideration: Young people, who might otherwise never touch nicotine, are vaping at rapidly increasing rates compared to five years ago. Even if vaping rarely kills, it is unhealthy, potentially addictive for life and (perhaps rarely) drives some users to smoke.

How can we stop the vaping epidemic? ›

Focusing on screening via electronic questionnaires and providing education on the harmful effects of e-cigarettes could help prevent initiation. However, prevention efforts should likely focus on all teens to reach those who don't disclose vaping to their provider.

Can dentist tell if you vape? ›

The answer is yes. While some people switch from smoking to vaping because they may think vaping is a safer alternative to smoking, studies show that it is just bad for your teeth and gums. Vaping has the same adverse effects on your oral health as smoking and your dentist WILL be able to tell.

What is Vaper's tongue? ›

Vaper's tongue (also known as vaper's fatigue) is a term that covers taste-related ailments. Often this happens from frequent use of a single, individual flavour. So, if you've been vaping the same flavour for a few weeks. you'll probably start to notice the difference in taste or lack thereof.

What happens if a baby hits a vape? ›

Nicotine poisoning often causes nausea, vomiting, dizziness, tremors (shakiness), and sweating, and can make the heart beat much faster than normal. Severe poisoning can cause seizures. It can even cause death.

Does vaping in a car smell? ›

Just like cigarettes, vaping also leaves an unpleasant smell in your car. Plus, due to the vegetable glycerin used for making the vaping e-liquids, some parts of the interior might be layered with sticky stains.

What happens if a 12 year old has a vape? ›

One e-liquid pod can contain as much nicotine as a packet of cigarettes. Nicotine exposure during the teenage years can harm brain development, which continues until about age 25. It can impact learning, memory and attention, and increase risk for future addiction to other drugs.

Is it OK for a 11 year old to vape? ›

A: The federal minimum age to purchase e-cigarette products is 18, but the laws vary by state – 49 states have set a minimum age that is older than 18. Unfortunately, the majority of underage vaping users are still getting the products from local gas stations or areas in their community that sell the products.

Is it legal for a 14 year old to vape? ›

While the sale and possession of any products that contain nicotine to anyone under 18 are illegal, minors can possess nicotine-free vape pens. Many schools ban the possession of all vape pens and accessories.

Is vaping addictive? ›

The health risks of vaping include: addiction: E-cigarettes contain nicotine, a drug that's highly addictive. You don't have to vape every day to get addicted. anxiety and depression: Nicotine makes anxiety and depression worse.

What to do if a 1 year old hits a vape? ›

If you suspect your child was exposed to liquid nicotine that was spilled on the skin or swallowed, call the Poison Center hotline: 800-222-1222 immediately.

Can you vape pregnant? ›

Although the aerosol of e-cigarettes generally has fewer harmful substances than cigarette smoke, e-cigarettes and other products containing nicotine are not safe to use during pregnancy. Nicotine is a health danger for pregnant women and developing babies and can damage a developing baby's brain and lungs.

Is it OK to vape in your room? ›

In contrast to the known harm from secondhand smoke, there's no evidence so far of harm to bystanders from exposure to e-cigarette vapour. The many harmful chemicals in tobacco smoke are either not contained in e-cigarette vapour at all, or are usually found at much lower levels.

Does vape make your teeth yellow? ›

Unlike Cigarettes, Vaping does not contain tar, which leads to brown and yellow teeth stains. The tar is continually absorbed through the enamel of the teeth slowing turning white teeth into discolored teeth. Vaping does not create smoke, so there is no worry about tar staining.

Does vaping make your breath smell? ›

While the scent of vaping usually smells somewhat pleasant, the nicotine in e-cigarettes can cause bad breath. Additionally, as mentioned previously, vaping can cause dry mouth, which is a major contributing factor to bad breath.

Does vaping make you look older? ›

“The nicotine in vaping liquids dehydrates your skin,” Dr. Raja said. “So, you can get premature wrinkles and very dry skin. In addition to skin aging, too, vaping can also delay wound healing.

Does vaping help you sleep? ›

Vaping may affect your quality of sleep and contribute to sleep issues. Particularly as the nicotine in e-juice acts as a stimulant. Reducing the nicotine in your e-juice and avoiding vaping for at least two hours before bed may help to improve the quality of your sleep.

Is vaping good for anxiety? ›

Stress and anxiety can trigger vape cravings, and make it harder for you to quit for good. You may be tempted to reach for your vape when you have these feelings, but vaping is not an effective way to cope. There are healthy and effective ways to deal with stress and anxiety.

Does vaping cause happiness? ›

In fact, according to Truth Initiative survey data, 93% of vapers reported that vaping negatively affected their lives because it made them feel more stressed, depressed, or anxious. Many tobacco users also falsely believe tobacco products can relieve stress or anxiety.

Why did vaping start in the first place? ›

What would become the first commercially successful electronic cigarette is created in Beijing, China by Hon Lik, a 52 year old pharmacist, inventor and smoker. He reportedly created the device after his father, also a heavy smoker, dies of lung cancer.

Who created the vape and why? ›

2003: Hon Lik Develops the First E-Cigarette

40 Years later in 2003, when people were much more aware of the damaging effects of tobacco, a pioneering Chinese pharmacist Hon Lik set about developing electronic cigarettes after losing his father to lung cancer.

What are 3 facts about vaping? ›

Vaping facts
  • Many vapes contain nicotine making them addictive.
  • Vapes can contain the same harmful chemicals found in cleaning products, nail polish remover, weed killer and bug spray.
  • Vapes can leave young people at increased risk of depression and anxiety.
  • The nicotine in 1 vape can = 50 cigarettes.

When was the first vape ever made? ›

History. It is commonly stated that the modern e-cigarette was invented in 2003 by Chinese pharmacist Hon Lik, but tobacco companies had been developing nicotine aerosol generation devices since as early as 1963.

Why do kids vape? ›

Teens often vape because vapes come in fun flavors, have sleek enticing packaging, and can be charged in a USB port. Teens have been led to believe that vapes are much less harmful than cigarettes.

Is vaping better than smoking? ›

Also known as vapes or e-cigs, they're far less harmful than cigarettes, and can help you quit smoking for good. They are not recommended for non-smokers and cannot be sold to people under 18 years old.

Do cigarettes ever expire? ›

Cigarettes don't really expire, so much as they become extremely stale. When cigarettes are exposed to air, moisture is allowed to escape from the resins and oils used during manufacturing. Fluctuations in humidity can also change the burn pattern of the cigarette wrapper, possibly making them burn faster.

How old is vaping? ›

People have been coming up with inventive ways to get high on nicotine for near a hundred years. But it wasn't until Chinese inventor Hon Lik invented his e-cigarette in 2003 that modern vaping was born.

Why is vaping so good? ›

First, many teens believe vaping is less harmful than smoking. Second, e-cigarettes have a lower per-use cost than traditional cigarettes. Finally, youths and adults find the lack of smoke appealing. With no smell, e-cigarettes reduce some of the stigma of smoking.

What was the first vape flavor? ›

When vaping first came to the United States, tobacco flavors were the first flavor. It is unknown who was the first to offer flavors outside of the traditional tobacco and menthol, but Juul was the first company to popularize vape juice flavors such as mint and fruity flavors.

What do you do if you drop a disposable vape in water? ›

Disposable vapes that have been exposed to water will not work due to a smart chip inside the disposable. We recommend throwing your disposable away if exposed to water. As disposable vapes are electronic devices, they are easily damaged by water.

What is vape made of? ›

It is typically a mixture of water, food grade flavoring, a choice of nicotine levels, cannabis (THC, CBD), propylene glycol (PG) or vegetable glycerin (VG). PG and VG are humectants used in e-liquid to produce aerosols that simulate combustible tobacco cigarette smoke.

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