Vaping, Students and the Law–The New Wild West
Editor’s note: Typically, Wilton’s Bill Lalor contributes a regular opinion column on legal topics, including education law. This month’s commentary, however, is a bit of a departure from his usual topic. However it does concern a subject relevant to the school community, especially in the higher grades–vaping and e-cigarettes. In fact, tonight, the Wilton Board of Education will discuss and vote on a school policy on the use of drugs, alcohol and tobacco products on school grounds, and the FDA is taking aggressive steps to restrict marketing and sales of these products to kids and teens. Here is Lalor’s unique take on what’s going on.
In my usual GOOD Morning Wilton column, I try to make basic aspects of the law impacting individuals more accessible. This installment addresses what I think are important issues associated with vaping and e-cigarettes, mostly through the lens of a parent of young-ish kids.
Last month, the USFDA published data that seems to validate something we have been witnessing in our area: The use of e-cigarettes increased 78% among high school students from 2017-2018, and 48% among middle school students. This probably goes without saying, but e-cigarettes are also a gateway: the data confirmed kids using e-cigarettes are more likely to try cigarettes later.
Vaping in 2018 is something like the cigarette smoking before the 1980’s, minus the smoke, burns, bad breath, etc. It’s also marketed along the same lines, with absurd claims to glamour and sex appeal that ultimately create the best kind of customer: the chemically-addicted kind, preferably young, all courtesy of our old friend nicotine.
One example is the “Veppo Cig” website, which seems to position itself as vaping’s Cosmopolitan Magazine. Veppo sells a “premium experience” extolled in dopey testimonials by fit, young, and hip looking folks with nice sunglasses and contemplative stares. (Think Audrey Hepburn in Breakfast at Tiffany’s or Jack Nicholson in Chinatown except they’re puffing something like “Grape Vape” or “Cherry Crush.”)
Vaping is aggressively marketed by the $5.5 billion industry as the healthy, smart alternative to smoking. This is fair, to a point. Vaping is safer than eating a bag of broken glass, playing wiffleball on Rte. 7, or a pack-per-day habit of unfiltered Pall Malls. But the ubiquity of nicotine and chemical flavorings, among other things, are a reminder that “healthy” and “safe” are relative concepts.
The idea of “healthy” vaping reminds me of the joke where someone asks the guy, “How’s your wife,” and he says, “Compared to what?” But, kudos to the vaping industry for the slick, effective pitch. If they’d gone with, “Vaping: It beats unfiltered Pall Malls,” vaping would not be a multi-billion dollar industry.
Let give vaping a for-argument’s-sake pass on things like vaporized THC and ubiquitous nicotine and instead talk about the flavors. The concern here, for parents in particular, is what’s in the device—the chemical cocktail known as “e-juice” (a/k/a “vape juice” or “e-liquid”). For its part, Veppo tells customers “food flavoring” is “the same as flavorings used in products like ketchup, ice cream and salad dressings.” This is accurate in a half-true, wink-wink sense and no doubt it helps Veppo sell its one-stop-shopping addiction kits, but there’s much more to it.
One example of food flavoring used in vaping flavors is the chemical diacetyl. I am not a doctor, and alas I do not play one on TV. But for over five years I was counsel for an insurer of large distributor of diacetyl, which was for many years in chemical butter flavoring and other foods. Before entering bankruptcy, the company was named in hundreds of claims and lawsuits alleging its diacetyl product had caused a condition caused “popcorn lung” among other things. The plaintiffs were typically workers at food manufacturing plants but included consumers who consumed large amounts of microwave popcorn.
I don’t know how popcorn lung (“bronchiolitis obliterans”) feels compared to lung cancer, esophageal cancer, etc.—presumably it’s less horrifying if the talking points are to be believed—but patients say it is something like suffocation. Patients are often told they have the lung function of someone in their eighties, and that’s about how they feel. Medical treatments are usually ineffective, and some patients need lung transplants. Diacetyl has also been linked to other diseases such as Alzheimer’s Disease.
Diacetyl is just one flavoring chemical used in e-juices, although labeling and disclosure requirements are so insufficient one could be forgiven for not realizing this. Other chemicals used in e-juices include propylene glycol and glycerin. And then there are the heating by-products including formaldehyde, acetaldehyde and acrolein. The FDA considers some safe, others not. But it does not take an FDA pronouncement to understand that directly ingesting such things cannot possibly make sense. Whether it’s diacetyl, or the diacetyl of tomorrow, why wait for the FDA?
No one wants to think about bronchilts obliterans, least of all indestructible teenagers. Likewise, no one really visualizes the fictional characters, twenty something years hence and in hospice care enduring the end stages of lung cancer, but such things happen to heavy smokers, “premium experience” or not.
Vaping can be safe. But that’s like saying my kids’ iPad can be great for learning geometry. As a parent, what strikes me about vaping is that the details—the mixes, the chemicals, etc.—are nearly impossible to monitor. The self-serving whitewash propagated by the industry side-steps the fact kids are not vaping organic fruits and vegetables. To the contrary, they’re enticed—as the industry intends—by disgraceful, kid-oriented imagery, flavors, labels that make “Joe Camel” seem like a quaint icon of social responsibility; then they are hooked by the nicotine; and then maybe their friend’s older brother lets them in on the THC; and then what?
As things currently stand, the restrictions, labeling, and warnings associated with vaping are a full-of-holes patchwork. To parents, it feels like the Wild West.
Bill Lalor is an attorney in Wilton. He can be reached at firstname.lastname@example.org.
This content is provided as background and does not constitute legal advice.