Tobacco Lobby Opens a New Playbook for E-Cigarettes

Hoping to avoid past mistakes, companies won’t oppose some regulations.

MIAMI, FL - FEBRUARY 20: Julia Boyle enjoys an electronic cigarette at the Vapor Shark store on February 20, 2014 in Miami, Florida. As the popularity of E- cigarettes continue to grow, leading U.S. tobacco companies such as Altria Group Inc. the maker of Marlboro cigarettes are annoucing plans to launch their own e-cigarettes as they start to pose a small but growing competitive threat to traditional smokes. (Photo by Joe Raedle/Getty Images)
National Journal
Michael Catalini
April 17, 2014, 3:27 p.m.

One e-ci­gar­ette maker mar­kets a fla­vor called “Con­gress,” with a web­site dis­play­ing a photo of the Cap­it­ol and de­scrib­ing the taste as “re­fined to­bacco.”

To some, it might evoke the smoke-filled rooms of yore. But “vap­ing” is not smoking, and the de­bate over reg­u­lat­ing e-ci­gar­ettes is not ne­ces­sar­ily an­oth­er to­bacco war.

As to­bacco com­pan­ies jockey to ex­pand their e-ci­gar­ette busi­ness, they’re us­ing an up­dated lob­by­ing play­book that drops op­pos­i­tion to reg­u­la­tions and em­braces the pro­hib­i­tion of sales to minors, in­dustry lob­by­ists say.

“The com­pan­ies are all really walk­ing gingerly,” said one to­bacco lob­by­ist, who spoke on the con­di­tion of an­onym­ity in or­der to be can­did. “People are loath to make the mis­takes of the past. This is al­most a clean sheet.”

In­deed, few in­dus­tries have been beaten up more thor­oughly than to­bacco. The in­dustry’s abil­ity to op­pose reg­u­la­tion — the 1988 ban of smoking on air­lines, for ex­ample, cham­pioned by then-Rep. Dick Durbin — has been ser­i­ously eroded by a mult­i­bil­lion-dol­lar law­suit set­tle­ment, a sem­in­al to­bacco bill passed in 2009, and years of bad pub­li­city.

“We are try­ing to get as far away from that play­book as we can,” said an­oth­er to­bacco lob­by­ist, re­fer­ring to the in­dustry’s repu­ta­tion as de­fend­er of a harm­ful product.

The new play­book, em­braced by some of the lar­ger play­ers in the in­dustry, is a clear move to­ward a “join ‘em” strategy. “I think it’s not a mat­ter of stay­ing out of the crosshairs of reg­u­lat­ors,” one lob­by­ist said. “It’s a mat­ter of work­ing with them.”

The shift in tac­tics comes as a small but in­flu­en­tial group of Demo­crat­ic law­makers, in­clud­ing Durbin, now the Sen­ate’s No. 2 Demo­crat, press for fur­ther reg­u­la­tion of e-ci­gar­ettes, which are man­u­fac­tured both by large to­bacco com­pan­ies and smal­ler, in­de­pend­ent firms. This week Durbin, Rep. Henry Wax­man of Cali­for­nia, and oth­er Demo­crat­ic law­makers is­sued a re­port that called for reg­u­lat­ors to ban the sale of e-ci­gar­ettes to minors and ad­opt a re­quire­ment for age veri­fic­a­tion.

To­bacco com­pan­ies re­acted, es­sen­tially, with a col­lect­ive yawn. Since the 2009 Fam­ily Smoking Pre­ven­tion and To­bacco Con­trol Act, when Al­tria Group, own­er of Philip Mor­ris USA, began to forge the reg­u­la­tion-friendly ap­proach, oth­er com­pan­ies like Reyn­olds Amer­ic­an and Lor­il­lard have be­gun to ad­opt the strategy.

“We have a vis­ion for mar­ket lead­er­ship by look­ing at trans­form­ing the in­dustry,” Reyn­olds spokes­man Richard Smith said. “One im­port­ant pil­lar is re­du­cing the youth to­bacco use — from the top down, that is a ma­jor pri­or­ity for us.”

While it might sound coun­ter­in­tu­it­ive for a com­pany to em­brace reg­u­la­tions, it may help the bot­tom line by pro­tect­ing ex­ist­ing mar­kets.

“Es­sen­tially this is a big vic­tory for the big to­bacco com­pan­ies,” said Bo­ston Uni­versity School of Pub­lic Health pro­fess­or Mi­chael Siegel, speak­ing of to­bacco reg­u­la­tion. “They can claim cor­rectly that they com­ply with FDA stand­ards. And it also de­tracts Con­gress from passing real reg­u­la­tion that would deal with to­bacco.”

The Demo­crat­ic law­makers say they’re fol­low­ing a dual-track ap­proach, push­ing for tough­er reg­u­la­tions — a pro­posed reg­u­la­tion is cur­rently stalled at the Of­fice of Man­age­ment and Budget — as well as spon­sor­ing le­gis­la­tion.

Sen. Bar­bara Box­er of Cali­for­nia in­tro­duced, along with six oth­er Demo­crats, a bill that pro­hib­its mar­ket­ing e-ci­gar­ettes to minors. Rep. Eliza­beth Esty of Con­necti­c­ut in­tro­duced com­pan­ion le­gis­la­tion in the House. It is still un­clear how the bills may fare mov­ing for­ward.

Mean­while, the Demo­crat­ic au­thors of the re­port dis­pute the no­tion that man­u­fac­tur­ers are keep­ing e-ci­gar­ettes out of minors’ hands. In­deed, one com­pany used ad­vert­ise­ments fea­tur­ing Cap’n Crunch car­toons.

“I am deeply dis­turbed that e-ci­gar­ette com­pan­ies are mim­ick­ing tac­tics that to­bacco com­pan­ies used in the past to glam­or­ize smoking for youth,” said Sen. Jay Rock­e­feller, a West Vir­gin­ia Demo­crat, in a state­ment.

Asked wheth­er he was con­cerned that the strategy could back­fire, and the reg­u­la­tions could hurt the com­pan­ies, one lob­by­ist answered in the af­firm­at­ive.

“These are people who have a suc­cess­ful his­tory and they’re go­ing to keep go­ing. From their per­spect­ive it prob­ably is the same play­book,” he said. “But the proof is in the pud­ding.”

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