5 Ridiculous Logical Consequences of Calling E-Liquid a Tobacco Product
With the FDA’s plans to regulate e-cigarettes as “tobacco products” underway, it’s important to take a moment to consider the absurdity of what’s happening: a product which contains no tobacco whatsoever is about to be subjected to a raft of absurd requirements inspired by those imposed on the most dangerous consumer product on the market today.
The decision to call e-cigarettes a tobacco product is really a purely legal one. Under the FDA’s official definition, a tobacco product is “any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product.”
The common criticism of the proposed FDA regulations is that calling e-cigarettes a tobacco product is obviously incorrect, but this really doesn’t hold up to scrutiny when you consider the legal framework. In short: it’s a waste of time making any serious argument that e-cigarettes aren’t a tobacco product for the purposes of opposing the FDA regulations.
That said, there is still a reason such criticisms are common: it is patently absurd from the basic standpoint argued in the first paragraph, and the consequences of regulating e-cigarettes as a tobacco product are likely to be very damaging to the industry. Moreover, the term has been fallaciously used by the CDC in the non-legal sense – by classing e-cigarettes as such when discussing the National Youth Tobacco Survey findings, they were able to say that there was “no change in overall current tobacco use,” when in fact tobacco use and smoking had declined overall.
This everyday, non-legal use of “tobacco product” to refer to e-cigarettes – simply because they contain nicotine derived from tobacco – can be shown to be ridiculous by simply looking at the consequences of applying this reasoning to other nicotine-containing and non-nicotine products:
1: Nicotine Patches and Gums are Tobacco Products
To start with the most obvious criticism: since almost all e-liquids use pharmaceutical-grade nicotine, this would mean that pharmaceutical nicotine products are also tobacco products. In fact, if the CDC had observed the same sharp decline in smoking but it had been accompanied by a steep rise in the chewing of nicotine gum, they would have had to conclude that there was “no change in overall current tobacco use” in exactly the same way they did with e-cigarettes.
From a legal perspective, this is an issue of “intended use” – which makes patches and gums technically classed as “drugs” – but based on the CDC’s logic they would have to reach the same conclusion in our hypothetical scenario. Of course, there wasn’t really a rise in nicotine patch and gum use accompanying the decline in smoking (probably because these don’t work for most smokers).
2: E-Cigarettes Could Also Not Be Tobacco Products
However, as most vapers know, tobacco isn’t the only plant which contains nicotine. Nicotine is naturally present in numerous vegetables, including tomatoes, eggplant, cauliflower and potatoes. The amounts may be very low – eggplant has the most, and this is still only 100 nanograms per gram (or 0.0001 mg per g) – but if you were so inclined (and had a pretty solid knowledge of chemical extraction) you could extract the nicotine from eggplants and use it to make an e-liquid. By even the legal definition, this would make e-cigarettes a non-tobacco product. Would the law then refer to e-cigarettes as eggplant products? You could have one e-liquid – using traditional tobacco-derived nicotine – that was a tobacco product, but another chemically identical e-liquid that you were forced to refer to as a “vegetable product.”
3 – Caffeine Tablets and Beverages Are “Coffee Products” or “Tea Products”
With decaffeinated coffee being increasingly common – and the extraction of caffeine from coffee or tea being relatively straightforward – there is an abundance of pure caffeine in the modern age. Since the use of pure nicotine taken from tobacco makes e-liquid a tobacco product, it follows that the use of pure caffeine taken from coffee beans, as part of caffeine tablets or even beverages like Mountain Dew, means that these are “coffee products.” This is all the more true because they’re intended for human consumption. Following the CDC’s claim about tobacco product use remaining stable, would it be reasonable to suggest that a widespread switch from coffee drinking to caffeine tablet use could be accurately described by saying that “coffee product” use hadn’t declined at all?
4 – Strawberry Yoghurt, Milkshake and Many Foods Are “Beetle Products”
Cochineal beetles are frequently ground up and used as a dye for food and beverages. Look at the ingredients list on red-colored foods and drinks, and you’ll often find cochineal, carmine or carminic acid listed. By the “tobacco product” logic, this makes all of these products – including but not limited to strawberry yoghurts and milkshakes – “beetle products.”
But there’s an obvious criticism: “that’s only a minor ingredient in these products!” Very true (and it’s really also nothing to worry about), but nicotine is only present in e-liquids at levels from below one percent to a maximum of around 3.6 percent. If nicotine – a minor ingredient derived from tobacco – is sufficient to class e-liquid as a tobacco product, then cochineal – a minor ingredient from the namesake beetle – should also be sufficient to class strawberry yoghurt as a beetle product.
5 – Fancy Perfumes are “Whale Products”
Would Chanel, Lanvin and other high-end perfume companies be happy to call their scents whale products? Because, following the “tobacco product” logic, they certainly are. Ambergris is a very valuable substance ejected from the intestines of sperm whales and ending up in some of the most divine and highly-prized fragrances in the world. The chemical is used because of its ability to help scents attach themselves to human skin, and although it’s illegal to use in perfumes in the U.S., it does happen in other countries such as France. Again, does the use of this minor ingredient make high-class perfumes “whale products?”
The Core Point: Defining Products by the Source of Minor Ingredients Is Silly
So we’ve treaded some slightly absurd ground over the course of this list, and of course, we aren’t really suggesting that caffeine pills are coffee products or perfumes are whale products. The real point is that chemicals – specific combinations of atomic elements – are exactly the same no matter where they come from. If you get nicotine from an eggplant, it’s identical to the nicotine you get from tobacco. The arrangement of the atoms is exactly the same, its effects on people are exactly the same, and all of its other properties are exactly the same. Once it’s been extracted from its original source, it means very little to still define it that way. This is why there would be no point in calling caffeine tablets coffee products – it’s no longer coffee; it’s caffeine.
For e-liquid, this is made even more ridiculous because it isn’t wholly or even primarily composed of nicotine. The levels in most e-liquids are lower than 1 part in 50. However – again, as justified as it is from a purely legal perspective – we ignore the other 49 parts in 50 (which are nothing to do with tobacco) and call it a tobacco product anyway.
When used in the everyday sense – in the way the CDC did and the way many ordinary members of the public may assume it is being used – calling e-liquid a tobacco product is blatantly misleading, and logically leads to a collection of other absurd classifications and inconsistencies. If the tobacco product regulation is carried out rationally and any restrictions imposed are proportional to the likely risks of vaping, then legally calling it a tobacco product is a non-issue. However, if the term is used to falsely equate e-liquid with tobacco, it’s nothing short of an affront to our collective common sense.
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