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.”