Is anyone really surprised to learn the FDA’s recent announcement that it will be attempting to stuff e-cigarettes into the round hole that is tobacco regulations might cause some fallout? One such side effect appears to be that entities are feeling more free to ban e-cigarettes by way of rolling them into existing tobacco rules despite the product’s tobacco-free nature.
State politicians already seem to be comfortable rolling e-cigarettes into tobacco laws now that they’ve gotten a wink and a nod at the federal level. It may even be that nothing needs to be done at the state level since e-cigarettes will officially be tobacco products if the FDA gets its way. Simply align the state rule with the FDA regulations and boom you’re done.
The same thing seems to be happening on the employer end. Many more companies are pushing e-cigarettes into their existing tobacco rules. Vapers will get to share the smoking areas with all the second hand smoke they can eat. Some of the more militant nanny employers already deny employment to anyone using any kind of nicotine (even NRTs). But, one potential huge issue is the smoker’s surcharge.
Employers appear to be looking at this already
Management-side attorney Mark Waterfill, a partner in the Indianapolis office of Benesch, Friedlander, Coplan & Aronoff, said he has not yet received any questions from clients about e-cigarettes. But if the FDA goes ahead with its regulatory plans, the products “will definitely” end up being treated the same as other tobacco products by employers, he told Bloomberg BNA April 30. However, Waterfill noted, “one distinction is that if you’re sitting at your desk smoking a cigarette, it creates a foul and offensive odor to those around you, while the manufacturers claim that not to be the case with e-cigarettes.”
Even so, he added, “at this point [employers] are free to treat e-cigarettes any way they want to, or an employer could certainly ban them from the workplace if they so desire.”
Said Darling: “Treating e-cigarettes as tobacco makes a lot of sense in both directions–you can’t ban them if you don’t ban other tobacco products. But there is a move toward banning tobacco and imposing financial penalties for tobacco use.”
Some employers charge more for insurance, for example, if someone smokes. People who have quit smoking with e-cigarettes are non-smokers in the traditional sense. However, once e-cigarettes officially become “tobacco” now people who tried to quit despite nothing else working will be given the privilege of paying more for insurance and generally being treated like second-class citizens.