Regulating E-Cigarettes and Heated Tobacco Products
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Regulating E-Cigarettes and Heated Tobacco Products

27 November 2019
Patrick Basham’s new report, “Regulating E-Cigarettes and Heated Tobacco Products: Democratic Lessons for Asia?” recommends Asian governments introduce sensible, science-based regulations for these lower-risk products as an alternative to smoking.

EXECUTIVE SUMMARY

Regulating E-Cigarettes and Heated Tobacco Products

In the area of tobacco harm reduction and reduced-risk products, could Western democracies hold valuable lessons for Asian regulators and stakeholders? The overriding lesson is that it is possible to advance public health through the regulation of such products, which this report terms “Electronic Exits from Injurious Tobacco”(EXITs).

How will Asian governments regulate EXITs? Based upon the global experience to date, broadly stated there are three approaches available to most Asian governments. The first approach, taken by some (mostly un- or semi-democratic) nations, is to prohibit e-cigarettes and “heat not burn” products.

But bans on EXITs that result from insular, top-down decision-making are inconsistent with democratic ideals. How should such public health policymaking be conducted? In a democracy, the policymaking process is more important than the actual policy outcome. Policymaking must not only be inclusive and debate-driven; it needs to be seen to be these things, too.

Opposition to EXITs is usually driven by threatened domestic economic interests seeking to protect the combustible (usually domestic) tobacco industry, as well as pharmaceutical interests. Such rent-seeking behavior has had a deleterious influence upon liberal democracies. One of the challenges for Asian governments is to ensure that their policymaking is not influenced by such self-interested economic actors.

For politicians seeking to reduce the harm associated with tobacco consumption, the decision to outlaw EXITs would be an unintentional signal that the health, even lives, of smokers is a low priority item. Prohibition of EXITs guarantees three albeit unintended consequences: first, a thriving illicit trade in these devices; second, EXITs become ‘cool’ “forbidden fruit” to underage users; and, third, more smokers die prematurely.

While prohibition may not be the answer, for Asian governments there is no generic, cookie-cutter import that may serve as the regulatory silver bullet. The second approach, taken by some Western democracies, is to legalize EXITs, but stringently regulate e-cigarettes and heat not burn devices as tobacco or medicinal products.

As outright bans benefit domestic tobacco companies, too strong a regulatory framework – for example, by allowing these products to be sold only if they are approved as medicines – also will benefit these same companies, as draconian regulations will ward off smaller competitors in a tightly controlled domestic market. A third approach, adopted by other Western governments, is to legalize EXITs and regulate the respective devices as consumer products.

The regulatory roadmap recommended in this report recognizes the following:

  • EXITs are an effective harm reduction tool.
  • EXITs are contributors to dynamic, technology-driven, competitive economies.
  • The pitfalls of the prohibition, or the over-regulation of, these new technologies.
  • Western democracies have chosen to regulate, rather than to prohibit, EXITs.
  • Consumer protection measures are integral to new regulatory frameworks.
  • EXITs are no exception to this rule.
  • Restrictions on truthful health information and comparative risk claims further inhibits potentially life-saving innovation by threatening to keep smokers and other consumers in the dark about the harm-reducing potential of e-cigarettes and heat not burn products.
  • Evidence-based policies on EXITs should be developed in consultation with policy experts, stakeholders, and consumers.

The policymaking sweet spot, therefore, is Goldilocks-style regulation, that is, a level of regulation that provides the necessary balance between too little and too much regulation. Should they concur, Asian stakeholders will encourage sensible, science based regulations for EXITs as an alternative to smoking.

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