California ecig “regulation” hearing: a catalog of lies (part 1)

by Carl V Phillips

On April 8, the California Senate Health Committee held a hearing on an anti-ecig bill. This was an amazing job of cataloging the many anti-THR lies about e-cigarettes. The main immediate impact of the bill would be to ban vaping in all the private and public (mostly private) places where smoking is banned, but the preamble of the bill makes clear that the plans are much worse than that, including licensing and laying the groundwork for punitive taxes on vapers. (That would be to punish them for denying California the buck-and-a-half per pack (approximately) that they were paying the state when they smoked.)

You can view the hearing here. The quoted material that follows is from CASAA’s unofficial transcript of the hearing (which we probably will release after it is proofread); I can’t stand to bother with video, but fortunately one of my colleagues can. (If you prefer something official, the video is here, but you have to skip to the 4 hour mark — as is typical, the ANTZ put e-cigarettes at the end of hearing sessions in order to punish e-cigarette proponents by making them sit through all the other business.)

I am not kidding about it being a catalog. There is such density of lies here that I get through only the first page of the transcript in Part 1.

The hearing began with Sen. Leno, the sponsor of the bill, making his case.

And just to get our definitions clear from the start, according to the FDA, e-cigarettes are battery operated projects—products—designed to deliver nicotine, flavor and other chemicals to the user. The nicotine contained in e-cigarettes is derived from tobacco and is highly addictive.

And just to get our cluelessness clear from the start, there is no FDA definition of e-cigarettes. But if that were the definition, it would include a battery-operated cigarette vending machine or a Chevrolet Volt that was used to deliver online orders of NRT. (Not that either of those exists as far as I know, but you get the point.)

The lies start immediately after that. “Addictive” is not a defined term, and its use is designed to make the audience think of the overwhelmingly destructive captivation that is created by some drugs for some people, which is not even an accurate description of the smoking experience. Moreover, even if you dumb down the word (and indeed, the even more extreme phrase, highly addictive) to include what is experienced by smokers, there is no evidence that nicotine itself has that property. There is quite a bit of evidence that it does not. And, yes, the nicotine is derived from tobacco but that is obviously irrelevant to anything. The molecule is the molecule. This is just inflammatory rhetoric.

It’s now about 2.5 billion dollars annually, nearly doubling every year, and, amazingly, it is unregulated.

The claim about the market falls somewhere between dubious and clearly wrong. This is a relatively unimportant point, other than it illustrates how Leno and his ilk do not hesitate to repeat claims that they heard someone say once, but that they have no idea about the truth of, as if they were absolute fact.

The big lie there is “unregulated”. There are three ways to parse that, and all are lies.

1. What he literally said: no regulation at all. As anyone with a clue about how the world works knows, every business is subject to about a billion regulations. Manufacturers (of anything) and merchants (of anything) are subject to more still. There are also regulations that apply to these particular products — indeed, he mentions one of them about fifteen seconds after he makes this claim! Moreover, for consumer goods in the American system, as anyone who has any business talking about regulation knows, regulation largely comes from civil liability and reputation (brand equity). Most of the regulation of all consumer goods comes not from command-and-control regulation, but from these, and they work quite well. They apply as much to e-cigarettes as they do to power tools or bicycles. Indeed, driving e-cigarettes to the black market, which is clearly the tacit goal of these guys (see below), would largely eliminate this very effective regulation that exists.

2. What he really was complaining about: that people like him do not have an iron-grip on the market. These people are not bothered by there being no regulation; they are bothered that individual consumers can make their own choices and the free market exists to allow them to do so. They want to be able to tell everyone what they can and cannot do. It would not be a lie if he said that, of course. The lie is the fact that this is their real motivation, but they pretend that it is not.

3. What he wanted the audience to think he was saying: there are good regulations that would benefit consumers. That is true, of course — proper regulation could be beneficial. But the lie is that he or anyone else is trying to impose regulations that would serve that purpose. The bill he is proposing is all about punishing consumers. There is nothing in it that would benefit them. Literally no regulation ever proposed by his ilk — with the exception of child-resistant packaging laws — would make the products better.

So however you interpret it, anyone who says e-cigarettes are “unregulated”, in this or any other context, is lying.

And why we’re here is that this is a really serious potential health crisis for California.

For something to be a really serious health crisis, or even a run-of-the-mill health crisis, you might think that it would be necessary for there to be some health costs. None are apparent in this case. But, of course, the health benefits are huge. People are using these products to improve their health, so even if they have some health costs, it is obviously the opposite of a health crisis. By Leno’s logic, the discovery of effective treatments for HIV has been a really serious health crisis for California: just look at the huge increase in the number of people living with HIV and taking drugs that have negative side effects.

The fastest growing segment of e-cigarette users is middle and high school students. Middle and high school students who have never smoked a traditional cigarette are now using e-cigarettes, despite the fact that our former colleague, Senator Ellen Corbett, was successful in putting into statute a ban on sales to minors.

Since he is making (pseudo) scientific claims, it is only fair to hold him to the standards of science and point out that I can think of a dozen ways to define “fastest growing”, and use of terms like that is just another way to say something that may be technically true (by one definition) but communicates to the audience something quite different from the truth. Notice also that the second sentence is merely claiming that two or more such people exist — undoubtedly true — but what it is communicating is a much stronger claim about widespread use that has not been established. Presumably he bases his claim on the CDC surveys which only ask whether someone has taken so much as one puff, not that they are using in any normal sense of the term. Moreover, the statistics show that this e-cigarette trying by teenagers is overwhelmingly concentrated among smokers. There is literally no evidence that many nonsmokers are actually using the products. There is plenty of evidence to suggest it is rather few of them.

The mention of the ban on sales to minors (a rather strange feature for a completely unregulated product!) is quite telling about what is the most insidious underlying lie in all of this, the hidden real goals of these extremists. They are ostensibly worried about the chiiildren. They banned sales to them. That was not 100% successful (shocking!) so now they want to… ban vaping in offices and bars. Yeah, that should do it. And they want to license merchants, because that prevents anyone from violating or end-running the law, as it has with cigarettes for decades. They want to impose punitive taxes, which will hurt the real e-cigarette users who are would-be smokers but are vaping a lot instead, but would be inconsequential to kids who want a few puffs every now and then. So what explains this disconnect? Are they just too stupid to know that their proposals would have no effect? Well, some of them are. But the ones pulling the strings are just trying to get the thin edge of the wedge in place with these laws so that they can eventually ban e-cigarettes entirely or at least reduce their quality. That will reduce their use among children (though obviously not eliminate it, since a black market is inevitable and far more convenient for underage shoppers), with the added bonus of protecting the state’s cigarette profits.

But the industry markets their products in flavors such as gummy bears, Mountain Dew, bubble gum. Is it any surprise this is in the hands of children?

Is there any evidence that these flavors are more likely to be in the hands of children, let alone that they cause any children who would not have used less interesting flavors to try them? Nope, none. This lie has been thoroughly analyzed, so I will not repeat that. I will just ask, does Leno realize he is talking about teenagers here? I am not an expert on marketing or anything, but I think I would only go for bubble gum or gummy bear flavor if I were targeting grade schoolers or whimsical adults; I have a feeling it is a turn-off for teens. Also, gummy bears come in a variety of flavors, so that is not well-defined. I suppose some regulation could keep manufacturers from using such ill-defined flavor descriptors, but that is obviously not what any of these guys want. Pepsico could issue a cease-and-desist for Mountain Dew if it actually sold enough for them to bother with — oh, wait, there are no regulations at all — I forgot.

And these products deliver nicotine.

(a) Not always, and the surveys of teen use do not distinguish. Someone who is not interested  in using nicotine in other forms would probably avoid it when toying with e-cigarettes.

(b) So what? It is not like nicotine is particularly harmful.

(c) Um, yeah, that is kind of the point. Which is why they are useful for harm reduction.

(d) All of the above.

We don’t even know what’s in the liquids that they are vaporizing because there’s no requirement for any of us to know what’s in them. But even in products that claim they are nicotine free, they have been tested by some of the professionals you’ll be hearing from, and they have found nicotine.

Rather fast-and-loose with the word “professionals” there. Also, none of the political hacks who testified later have the skills to run a test for nicotine unless someone else did the real work and they were just tasked with switching on the machine. Indeed, one of them apparently does not even know how to operate switches.

So the bill would require listing of ingredients? We could support such a provision. Well, no, it would not, and there is no reason to believe that California would ever require that. If that were planned, the bill on the table would do nothing to further that goal. This is just more of the lie of using innuendo about reasonable-sounding goals in order to hide a draconian agenda that is just about bans and cash-grabs.

We are at risk of losing twenty-five year’s effort and a two billion dollar investment in keeping a next generation from becoming addicted to the killing drug of nicotine. So this is big business, and Wells Fargo has estimated that within ten years, 75% of this market will be controlled and owned by the big three tobacco companies.

Again, no measurable health risk and no evidence of addiction. Moron.

As for the latter, another minor lie of the type that flow easily from people who read something once and pretend to be expert: “One person who flogs publicly-traded tobacco stocks for a living said that once, but now has changed her mind” is a bit different from “Wells Fargo has estimated”. Oh, and anyone who thinks there will be the big three U.S. tobacco companies in ten years is especially clueless, given that the acquisition of the not-so-big third, by the second, is nearing finalization. Maybe he is hoping one of the internationals will step up.

So the Smoke-free Act will prohibit the use, and it’s doesn’t ban e-cigarettes, so anyone who suggests we’re trying to ban them is just incorrect.

Key word: “so”. At the simplest level, this is a lie because it is a non sequitur. At a deeper level, nothing short of a ban would further some of the goals that he already stated, and the proposed bill does not address any of them. So anyone who surmises from the rhetoric that a ban, or something close, is the next step (or perhaps the fifth step in a series) has some pretty good supporting evidence.

It will just merely limit where they can be used. And, as with traditional cigarettes, they would be banned from schools, and restaurants, and day care centers, public transportation.

Funny how he does not mention the much greater number of private adult venues where the ban would apply, notably offices and bars, where it would impose the most harm on vapers, and on real public health by discouraging smokers from switching. If the real goal were to ban vaping in schools, day care centers, and public transportation, the state could just do that. I suspect they could do it without even passing a new law — they exert iron-grip control over all of those venues. I would even guess that most of those operations in the state have already imposed such bans. As for restaurants, these are all controlled by proprietors who can decide for themselves, assuming of course that the senator believes in freedom of association.

And remind me again how that ban is going to keep kids from using e-cigarettes at parties or surreptitiously in their bedrooms, get rid of fun flavors, and ensure that ingredients listings are accurate.

And to end the post on a laugh:

And why are we doing that? Because the emissions from these e-cigarettes, though the common parlance is “just vapor,” and that’s where the term “vaporizing” comes from, giving the indication that it’s just water particles, in fact, it is aerosol. And aerosol, different from vapor, is made up of particles, and they are chemicals. The California Department of Public Health has identified minimally ten carcinogenic elements in these particles in the vapor—in the aerosol that is emitted. So the second-hand emission is just as dangerous as traditional smoke.

Um, yeah. The mind just boggles.

Aerosols are chemicals, unlike real vapor which is made up of dark matter and pin-dancing angels. I am pretty sure that the term “vaporizing” predates e-cigarettes (and is not really used in the context of e-cigarettes). Of course, if vapor (as defined as “what comes out of e-cigarettes” — language evolves like that) really were vapor (as defined in physical chemistry) it would not be particles. Also, we would call “water particles” droplets. I cannot even figure out where to start on “these particles in the vapor”. As for “ten carcinogenic elements”, I am going to go with Cm, Es, Fm, Md, Lr, Rf, Sg, and Cn — all named after geniuses — because there is a desperate need for a little intelligence here, and top them off with Berkelium and Californium, which will bring the average back down. Of course, those elements are unstable (insert California joke here) and not naturally occurring. But most elements are carcinogenic, in some form and circumstance, and at least a few atoms of most every naturally occurring element are present in everything (including water particles), so the CDPH did not exactly go out on a limb there. Of course they probably listed molecules not elements but, hey, who can be bothered with such details when pursuing the important goal of making people suffer needlessly? And, of course, California law requires that every commercial building post a warning that there are chemicals present that are known to cause cancer, so they are not really big on understanding that the dose makes the poison. Or the purpose of warnings.

Anyway, I think the main take-away from all that is that the California schools have much bigger problems to deal with than vaping.

The egregious harmful lie is, of course, that the second-hand emission — which is so utterly trivial than no honest person would suggest it poses a hazard — is just as harmful as environmental tobacco smoke. The only basis for suggesting such a thing is that he is endorsing the position that ETS does not actually pose much of a health hazard. There is a good case to be made for that. Of course, given the choice between (a) Sen. Leno understanding a politically incorrect scientific point like that and (b) that he is just making up everything he says without regard to whether it has even a passing acquaintance with the truth, I think I know which to bet on.

Ok, that was page 1 of 12. Really. Stay tuned.