Lobbyists amp up efforts to sell Washington on e-cigarettes

Blair Roberts, a 22-year-old sales associate at Colorado E-Smokes,
Blair Roberts, a 22-year-old sales associate at Colorado E-Smokes, "vapes" with an electronic cigarette in the Aurora, Colo., store. In the absence of federal rules, Colorado is among states that considered its own age requirements for the nicotine-delivery devices.
Ed Andrieski/AP

In a scene from the new season of the popular Netflix political drama "House of Cards," the elegant Claire Underwood catches her soon-to-be vice president husband puffing an e-cigarette.

"You're cheating," she says, referring to their efforts to quit smoking.

"No, I'm not," Congressman Francis Underwood replies. "It's vapor....addiction without the consequences."

A Washington-based drama with an implicit endorsement of "vaping" – the practice of partaking in nicotine without burning tobacco?

It could have been ripped directly from the playbook of lobbyists working Capitol Hill and Washington regulators on behalf of the estimated $1.7 billion-and-growing e-cigarette industry.

Eric Criss of the Electronic Cigarette Industry Group (ECIG), laughs off the suggestion that his Florida-based organization, which recently opened a lobbying office in suburban Washington, orchestrated the "House of Cards" scene.

"No, we did not have anything to do with that product placement," Criss says, or with the Golden Globe Awards gag last month where Julia Louis-Dreyfus ostentatiously puffed a blue-tipped e-cigarette. (Pro-"vaping" sites lit up with comments about the "House of Cards" moment since the show has become almost synonymous with product placement.)

As e-cigs continue to embed themselves in popular culture, lobbying efforts are heating up around the issue of how government will ultimately regulate the nascent battery-powered nicotine delivery system. All eyes are on the U.S. Food and Drug Administration, which, in concert with the White House Office of Management and Budget, is expected to soon release a long awaited proposal for regulating e-cigarettes.

Selling D.C. on a new cig

Debate over the product's health effects continue. A recent Bloomberg Businessweek cover on e-cigs captured the discussion with this tagline: "They're new. They're blue. But will they still kill you?"

Because e-cigarettes don't burn tobacco, cancer-causing tar isn't delivered to users' lungs. But there are concerns that the electronic version could serve as a "gateway" to traditional cigarettes for young people, and that the full health effects of inhaling the nicotine vapor have yet been studied.

The question occupying both ECIG, which represents small producers of e-cigarettes, and tobacco giants like Reynolds American, which has a growing e-cigarette subsidiary, is whether the FDA will seek to regulate the nicotine delivery system in the same manner as traditional products that burn tobacco.

"We're focused not so much on the Hill, but more on the regulators," says Bryan Haynes, a partner and tobacco regulation expert at the large national law firm Troutman Sanders LLP and counsel for the ECIG.

"We do want the public to have a comfort level that what the manufacturers say is in the product is actually accurate," Haynes says. "At the same time, we do not believe that e-cigarettes should be regulated in the same way traditional tobacco products are regulated."

The 2009 Family Smoking Prevention and Tobacco Act includes restrictions on retail and online tobacco sales, limits on advertising and marketing to young people, and assesses user fees based on market share.

Criss, ECIG's spokesman, says that most e-cigarette producers, big and small, agree the product needs to be regulated to prevent its sale to minors, to control its ingredients, and to provide proper and accurate labeling.

He also acknowledges the concerns of anti-smoking advocates who have "worked very long and hard to make smoking not look cool – and this product looks like a cigarette, and has nicotine."

"That is a real concern when it comes to kids," he says, "but it is combusting tobacco that kills people."

The "white hat" message that ECIG is using to persuade regulators and Congress is this, according to Criss: e-cigarettes can "move existing smokers down the ladder of risk."

The Campaign for Tobacco-Free Kids has another view. The group claimed this week that tobacco giant Lorillard Inc., in a "Sports Illustrated" advertisement for its e-cigarette, directly targeted teenage boys.

The ad by Lorillard, which last year spent about $2.8 million lobbying for issues including c-cigarettes, featured a close up of a model in a tiny bikini bottom emblazoned with the company's e-cigarette's logo.

In a blog post on its website, the group called on the FDA to prevent such marketing, asserting that the ad "is just the latest example of how marketing for e-cigarettes is using the same slick tactics long used to market regular cigarettes to kids."

The organization is on record, however, as saying that e-cigarettes could benefit public health if responsibly marketed.

Big tobacco, new market

David Howard is spokesman for Reynolds American, the parent company of subsidiaries that include the R.J. Reynolds Tobacco Co., maker of Camel, Pall Mall and Winston cigarettes, and the relatively new R.J. Reynolds Vapor Co., which produces the VUSE e-cigarette.

"We are in this business, and we are going to lobby on issues that affect our business, and we are going to have our side represented," Howard says. "These products are different from traditional tobacco products. There's no tobacco. There's no combustion."

The company, which in 2013 spent about $3.3 million lobbying for issues including e-cigarettes, activated it first statewide distribution of VUSE in Colorado last July. It went statewide in Utah in January, and the company is taking steps for a national rollout, he says.

"We believe there is significant potential in the category," Howard says. "Some analysts say it could be a $5 billion industry in the next handful of years."

When the FDA releases its proposed regulation, it simply begins a lengthy comment period, one that could very well spawn litigation. Howard mentions that R.J. Reynolds successfully challenged a marketing provision in the 2009 Tobacco Act after it was proposed.

So while e-cig lobbying has already been kicked up a notch, the real fight begins when the FDA makes its regulation proposal — any day now.