The FDA, the CDC, and five Senate Democrats, cheered on by anti-tobacco advocacy groups, are viewing-with-alarm new statistics about the use of e-cigarettes. It may turn out that concern is warranted, but for now I’d advise everyone involved to exhale slowly and calm down. Based on what’s now known, it looks to me as if over-regulation poses a bigger risk to public health than under-regulation.

The market for e-cigarettes – devices that deliver nicotine vapor without the cloud of particulates, polycyclic aromatic hydrocarbons, ammonia, and hot gasses that a cigarette provides, and without the smell – is growing rapidly, among adolescents as well as adults. Many adults are switching from cigarette smoking to e-cigarette use, while many adolescents seem to be heading directly to e-cigs or using both forms at once.

Of course, you’d expect the availability of a new form of nicotine delivery with attractive features to increase total nicotine use. But the the risks of nicotine are a tiny fraction – almost certainly less than 10%, arguably even lower than that – of the total health risks of smoking. If e-cigarettes substitute for smoking, the health benefits are likely to be very large. Even if they substitute for not smoking or for quitting, the damage is likely to be limited.

And yes, some e-cigarettes may be improperly manufactured and contain some of the same noxious chemicals contained in regular cigarettes, though even then at orders-of-magnitude lower doses. And it’s possible that it will turn out that chronic inhalation of one or more of the liquids now used as vehicles will turn out to cause currently-unsuspected health damage. In principle, you couldn’t know that the devices are safe without exposing large numbers of people to them and waiting 50 years.

The FDA’s desire to have enough authority to require e-cigarette sellers to manufacture them properly and label them accurately, to limit marketing aimed at minors, and to be able to force the removal of unsafe product from the market, seems quite reasonable. What’s not reasonable, and what is likely to be bad, on balance, for health, is the idea that anything that delivers nicotine vapor should have the same rules applied to it as an actual cigarette.

For example: one of the current goals of the anti-smoking movement is to ban menthol cigarettes; all other flavors are already banned. But there wasn’t ever much of a market for vanilla or cherry-flavored cigarettes, or even for clove-flavored cigarettes. Menthol, by contrast, accounts for something like a third of all cigarettes sold, and a much higher proportion than that among African-Americans. Many menthol smokers, according to surveys, say they’d rather quit smoking altogether than switch to regular. That, of course, would be good news on the health front. But the bad news is that menthol smokers who don’t want to switch and find they can’t quit will instead swell the customer base of the already-flourishing markets for illicit (untaxed) tobacco products. As Peter Reuter has pointed out, banned drugs lead to nasty black markets, and there’s no reason to think that banned cigarettes won’t do the same.

Maybe that price – in the form of criminal revenue, enforcement expenditure, arrest, incarceration, and illicit-market violence and corruption – is worth paying for the health benefits of reduced smoking. (Recall that a 5% shrinkage in cigarette use would, in the long run, mean 20,000 fewer tobacco-related deaths per year.) But you’d much rather have the benefit without paying the price. If displaced menthol smokers have menthol e-cigarettes available as a substitute, their interest in illicit menthol-flavored normal cigarettes would be that much less.

And that’s why I’m nervous about the possibility that the FDA, in a rulemaking expected soon, will “deem” that e-cigarettes are cigarettes for regulatory purposes, which would mean that a ban on menthol smokes would include a ban on menthol e-cigs.

None of this is simple or straightforward. I can imagine myself, five years from now, bitterly regretting not having spotted the e-cigarette menace before it got out of control. But regulations can do harm as well as good, and what I’m not hearing right now is much willingness to think carefully and proceed with caution. The principle of aggregate harm minimization, net of benefits (and nicotine does have benefits, including at least a temporary cognitive boost) still seems to me the right approach, for nicotine no less than for cannabis or cocaine. Unless and until someone can point to demonstrated and serious risks, rather than speculative ones, e-cigarettes ought to be thought of mostly as a part of the solution rather than as a part of the problem.

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Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.