Amid a surge in vaping by teens, and increasing health concerns nationwide — including six deaths across the country — New Jersey legislative leaders are talking about becoming the first state to ban the sale of vaping products.
State Senate President Stephen Sweeney has called for legislation see a phased-in ban on electronic smoking devices, including nicotine cartridges and containers, as well as all other vapor products. Gov. Phil Murphy has announced the creation of a task force to study the dangers of vaping, and come back with regulatory and legislative recommendations within three weeks.
But can the state actually act to impose such a ban?
According to legal experts, it can.
“State and local governments have that authority,” said Mark D. Meaney at the Public Health Law Center at Mitchell Hamline School of Law in St. Paul.
He noted that e-cigarettes are regulated as tobacco products and that while the federal government keeps jurisdiction over issues such as labeling, marketing and disclosure of ingredients, state and local governments have the right to impose sales restrictions.
“There is legal authority to ban e-cigarettes,” he said.
Under the 2009 Tobacco Control Act, the U.S. Food and Drug Administration was given authority to regulate the manufacture, distribution, and marketing of tobacco products, explained Rutgers Law School Associate Dean Christina S. Ho, who specializes in health law. But she said the law also preserved the power of state and local laws regarding the sale of those products.
“There is definitely room here to enact a ban,” said Ho.
What would pass court muster in New Jersey would depend on the scope of any proposed ban, but there have been restrictions on the sale of cigarettes—such as the prohibition of their sale within 500 feet of a school—that have been upheld.
“No doubt it will be litigated,” said Ho.
The Vapor Technology Association, an industry trade group, did not respond directly to the proposals in New Jersey to ban the sale of vaping products, but noted its opposition to the move by the Trump administration to ban the sale of most flavored e-cigarettes, calling it “government overreach.”
The president on Wednesday acknowledged that there was a vaping problem and said: “We can’t allow people to get sick. And we can’t have our kids be so affected.”
The trade group said flavored vaping products were “one of the most effective smoking cessation tools on the market.” It also said that there has been no indication that industry standard nicotine-containing vapor products are to blame for recent cases of lung illness.
“Banning flavors would be a public health travesty,” said the group in a statement. “More than two million Americans have died from cigarette smoking related illnesses over the last five years. If a federal flavor ban is enacted, more than 10 million adults will be forced to choose between smoking again or finding what they want and need on the black market.”
There are more than 250 vape shops in New Jersey, according to the New Jersey Vapor Rights Coalition.
Sparking the push to crack down on vaping has been its growing use by young people, and recent disclosures of illnesses and deaths attributed to the product. More than 450 illnesses associated with vaping have been reported in 33 states, according to the U.S. Centers for Disease Control and Prevention. Six people have died.
The CDC has not yet identified a specific cause for the outbreak, including whether the problem is with black-market or legal vaping products.
In New Jersey, the state health department has confirmed three cases and is investigating 19 others of severe lung illness in people who vape since early August, according to the state website. None of the deaths occurred in New Jersey.
Sweeney, in pledging new legislation, said there are real health issues from vaping.
“There is an urgency here with the health and safety — and even the lives — of young people at risk,” the senate president said.
NJ Advance Media staff writer Susan K. Livio contributed to this report.