E-Cigarettes Under Fire

Posted on November 30th, 2009

OVERLAND PARK, Kan. — As more cities ban smoking in restaurants and bars, there is a newer product to the United States that makers claim you can still smoke indoors. It’s under fire from cities across the country, the Food and Drug Administration and a metro parent.

If you’ve been to the mall lately, you may have seen a kiosk selling electronic cigarettes. We’ve found the kiosks at Independence Center and Oak Park mall.

If you walk past the kiosk at Oak Park, a salesperson will ask if you smoke.

At Smoke51 we were shown a product that closely resembled a real cigarette. It comes with a battery and filter and even comes in flavors.

“There’s a heating element that steams water, nicotine, and flavor so you’re going to see me blow out smoke but it’s actually steam or water vapor,” the salesman said.

There are many questions about how this product is marketed.

The Electronic Cigarette Association (ECA) tells its members they can’t make health claims, cannot sell to minors, and they should not make cessation claims.

“We do not market it as a smoking cessation device or healthy alternative. We market it as an alternative to smoking tobacco that kills 500,000 people a year,” President Matt Salmon said.

Despite ECA goals, we were clearly told it’s a healthy alternative at Independence Center and Oak Park Mall kiosks by companies that are not part of the ECA membership.

At Smoke51, the owner calls it a “healthy alternative.”

His salesman says, “It’s not harmful to you.”

The salesman went on to say, “You’re getting a cigarette with all the pros and not the cons. It saves your life and it saves your health.”

In Independence Center, the flavors were pushed to a minor we sent to the kiosk.

“Most girls really like it again my wife absolutely loves the blueberry. It gives you Vitamin D and it gives you the exact same thing you get out of a regular cigarette the only difference it’s not killing you,” the salesman said at Smoking Everywhere.

Kids Think They’re Cool

E-cigarettes are available in a variety of flavors and have different levels of nicotine.

Since they don’t contain tobacco, it’s not illegal to sell them to a minor. However, most company websites and kiosks won’t sell to someone under age 18. Online, you’re not even allowed on some Web sites unless you certify you’re over 18.

It’s still a concern to parents who thought their teens were safe at the mall.

John Wickwire says his 17-year-old son came home from the mall and talked all about electronic cigarettes. John says his son was with a group of teens who were all under age 18 except for one.

“He came home all excited, and I was like, freaked, and I think he was surprised by how I reacted.

“He’s excited and saying, ‘Oh, yeah, there’s this new thing. It’s so cool. They have these flavors,’ and I’m like, ‘What is it?’

“And then he said, ‘Oh, it’s this new kind of cigarette’.

“And I’m like, ‘No, I don’t want you doing cigarettes’,” Wickwire said.

Wickwire thinks there’s a better place for this product than the mall.

“It’s nicotine. It’s addictive. It should be in a drugstore,” Wickwire said.

He says he complained to management at Independence Center. Then he called for action.

Undercover: Easy Access for Kids

We launched an investigation, sending our intern into the mall with a minor whose parents gave us permission. They were armed with a hidden camera.

At the kiosk in Independence Center, our minor wasn’t allowed to try the e-cigarrette.

“I would let you, I don’t have a problem with it, but they would get mad at us. I’m a new employee and got four kids I have to try to support,” the salesman at Smoking Everywhere told our minor.

Wickwire is pleased our minor wasn’t offered a smoke, and hopes his complaining helped bring about that change.

Independence Center would not comment on our story. We also called the corporate Smoking Everywhere office, and have not heard back from the company.

Wickwire was also concerned that the e-cigarettes kiosk at Independence Center was located near teen stores like a skate shop, but he says it has since been moved.

At Oak Park Mall, Smoke51 has also been moved. It was on the lower level of the mall to start. The owner says it was near a carousel where moms and their children would play, so it’s been moved to the food court.

Rafael Orlan owns the Smoke51 kiosk, and says he doesn’t even want kids hanging around his kiosk.

“We have signs must be 18 to buy or try it,” says Orlan.

However, when our minor and intern went to his kiosk, they were offered an e-cigarette with no nicotine.

Our intern asked, “So what’s the point of that?”

The salesman answered, “An oral fixation. It just feels like a cigarette if you want to try the zero one I’ll let you try it.”

A few seconds later, our minor was puffing away on a product that looked like a cigarette but supposedly has no nicotine.

We showed the video to Orlan.

“He made a mistake. A horrible mistake. He did give her zero nicotine which, I guess he made a judgment call, but it was the wrong call for me,” Orlan said.

Orlan says he trains he employees to ask for ID.

“Of course they’ll take notice of this because he will get fired,” Orlan said.

While what happened is not illegal, Orlan says he doesn’t want his product marketed to people who don’t smoke and the $180 price point is one way he tries to make it unattractive to children.

The Food and Drug Administration (FDA) is also concerned about the product being targeted to teens.

It currently bans flavored cigarettes fearing they target children, but flavored e-cigarettes are allowed.

In July, the FDA did put out a warning about e-cigarettes.

“These products are marketed and sold to young people and are readily available online and in shopping malls. In addition, these products do not contain any health warnings comparable to FDA-approved nicotine replacement products or conventional cigarettes. They are also available in different flavors, such as chocolate and mint, which may appeal to young people,” the FDA says.

The FDA’s Division of Pharmaceutical Analysis analyzed a sample of cartridges from Njoy and Smoking Everywhere.

The FDA says one sample detected diethylene glycol, which the FDA says is a chemical used in antifreeze, and is toxic to humans.

The FDA says other samples revealed carcinogens.

While it did the testing, the FDA calls it a preliminary analysis and adds that you should not draw conclusions about what is or is not in these products because it can vary.

The FDA says it tested some cartridges that were labeled as having no nicotine, yet the FDA says it found low levels of nicotine in all except one cartridge. The FDA says it also found that the nicotine levels vary.

FDA Blocks Some E-Cigarette Imports

Shipments of e-cigarettes have even been detained at the border.

The FDA is concerned because these devices have not been submitted for approval or evaluation by the FDA, and they have only limited testing to determine product safety.

The FDA believes e-cigarettes meet the definition of a drug-device under the Federal Food, Drug, and Cosmetic Act. There is even a federal case pending over the FDA’s jurisdiction over this product.

For the FDA to approve the product, the company would need to submit data showing that the product is safe and effective.

Florida-based Smoking Everywhere, Inc. is asking for a preliminary injunction against the FDA so the company can import electronic cigarettes and its accessories. One-hundred percent of its e-cigarette supply is imported, and the FDA has refused some e-cigarette shipments, and added the product to an “Import Alert” list.

The company believes it was not notified correctly of this alert, and questions the FDA’s ability to regulate electronic cigarettes.

The lawsuit from Smoking Everywhere, Inc., says, “By including electronic cigarettes on the FDA’s import alert, several shipments of SE’s products have been wrongfully refused entry into the United States.”

Effective Alternative to Tobacco Smoking

The Electronic Cigarette Association questions the timing of the FDA’s testing.

“If they truly believe that the public is out there being harmed, isn’t one day too long to sit on a study like that? Whey did they not release it for three months? That’s their own factual information,” Salmon said.

Salmon doesn’t smoke, but believes you have the right to smoke and believes there should be an alternative available. He’s seen the devastating effects of smoking on family members.

As an Arizona congressman, Salmon pushed through one of the first public smoking bans. He wants the industry to sell a safe product, and applauds increased regulation as long as it’s within reason.

Since the ECA tells its members to not make health claims, he doesn’t believe FDA testing is necessary to continue sales.

“It would probably take three to eight years to accomplish that, and up to $1.5-billion to do that kind of testing. This is a small industry. We are not big pharmaceutical companies. We are tyring to offer an alternative,” Salmon said.

As for the concerns raised by Wickwire, Salmon shares his belief that e-cigarettes should be pulled from malls.

“I don’t think there’s enough safeguards in kiosks in malls to keep them out of the hands of children,” Salmon said.

He even agrees with banning the flavors if that will protect more children.

Some States have Banned or Restricted E-Cigarettes

John Wickwire is surprised safety discussions didn’t happen before the product was put in malls. He’d like to see e-cigarettes moved to drugstores.

“I thought we had a lot more safeguards,” Wickwire said.

We called the Jackson and Johnson County health departments, and they weren’t aware of the kiosks.

In Oregon, the attorney general filed a lawsuit against Smoking Everywhere, alleging the company made false claims about it’s electronic cigarette.

“It’s my duty to protect the public from products that are falsely advertised as safe,” Attorney General John Kroger said in August.

Oregon sued the company for rejecting a settlement similar to one it reached with other retailers and distributors. The deal keeps them from selling the battery-operated device until they meet state and federal standards.

In California, Governor Arnold Schwarzenegger vetoed a bill to ban e-cigarettes.

“While I support restricting access of electronic cigarettes to children under the age of 18, I cannot sign a measure that also declares them a federally regulated drug when the matter is currently being decided through pending litigation,” Schwarzenegger wrote to the California Senate.

In August, Suffolk County New York passed a bill that means e-cigarettes will face the same restrictions as traditional cigarettes. You can’t sell cigarettes to anyone under age 19 and you can’t use them in public places where traditional smoking is banned. “We here in Suffolk County can be proud that we didn’t sit on our hands and wait for Washington to act,” said Majority Leader John Cooper in August.

The e-cigarettes are also banned in some countries across the world.

However, the local Smoke51 owner, points to research from New Zealand to declare the safety of the product.

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