It’s really not surprising that insurance companies charge higher rates for smokers. After all, smoking puts you at increased risk for cancer, heart disease, and stroke. This year, the introduction of the Affordable Care Act, or ObamaCare, has caused premiums to go even higher for smokers with insurers sometimes charging 50% more if you use tobacco products.

However, once you switch to electronic cigarettes, is it fair that you should continue to pay the higher rates? After all, electronic cigarettes do not contain tobacco and they reduce the health risks associated with smoking. These products do not emit smoke and do not contain tobacco, tar, or any of the many carcinogens known to exist in combustible cigarettes. For many vapers, the potential surcharges are reason for pause when filling out insurance applications.

Typically, consumers are asked two key questions that determine if they will have to pay the higher rates: Do you currently use tobacco products? Are you currently using any smoking cessation products? Vapers must think carefully before answering these questions. On one hand, electronic cigarettes do not contain tobacco so technically, vapers can easily answer no to the first question. However, the second question can make things a little tricky.

The FDA has not approved electronic cigarettes for smoking cessation, but many people use them in that way. So if a consumer has completely stopped using cigarettes and is only vaping, then the answer to both questions might be “No” and the surcharge would be waived. In fact, the only way the insurer will even know that the consumer uses electronic cigarettes is if the information is volunteered.

Ultimately, each consumer will have to decide how to answer application questions until the FDA officially regulates electronic cigarettes and forces a legal definition. At that point, insurers will most likely be forced to automatically classify electronic cigarettes as tobacco products, forcing vapers to pay the higher rates.




The electronic cigarette industry is rapidly growing and many smokers are choosing electronic cigarettes as a path to quit smoking. As electronic cigarettes sales boom, tobacco companies are quickly trying to recover their losses by launching their own vaping lines. Tobacco companies are not the only ones at risk for losing profits. Big Pharma is extremely invested in tobacco users with nicotine replacement therapies and smoking cessation drugs expected to be worth $4.6 billion per year by 2016. As electronic cigarettes cut into the potential profit margins, drug companies are actively lobbying to have the tobacco-free electronic cigarettes strictly regulated or banned.

The London Times was the first to report on a leaked memo from GlaxoSmithKline that revealed the drug company’s lobbying efforts. Glaxo offers multiple nicotine replacement products and they have a lot to lose if electronic cigarettes become the smoker’s choice for cessation. In the memo, Glaxo’s consumer healthcare division argued that electronic cigarettes should be regulated as medications instead of tobacco products. It went on to say that electronic cigarettes could act as a gateway, leading more people to start smoking.

As lawmakers debate how to set appropriate regulations for electronic cigarettes, there is no room for Big Pharma to cloud objectivity with selfish motivation. These drug companies should be required to disclose their funding and other involvement in electronic cigarette research because their studies are likely to be biased. Unfortunately, the drug companies have allies around the world including insiders at the FDA.

Lobbying is a major problem and the only way that it will stop is if the whistle is blown every time it’s discovered. Big Pharma has a lot of money to invest in making sure lawmakers take their best interests into consideration. Now that we know with 100% certainty that Big Pharma is targeting electronic cigarettes, is there any hope for fair regulation?



Using the FDA’s current regulatory framework for tobacco products, implemented under the Family Smoking Prevention and Tobacco Control Act, there are some areas of the electronic cigarette industry that may face regulation under current law.

The most damaging potential regulation would require electronic cigarette companies to comply with the current substantial equivalence determinations governing cigarette companies.  Essentially, this regulation would require all electronic cigarette companies that began operating after 2007 to have their products taken off the market until they demonstrate that they are in compliance with FDA regulations and are substantially equivalent to the other electronic cigarette products offered in the marketplace.

Given that almost every electronic cigarette company entered the market after 2007, and the notoriously slow process of obtaining equivalency status, complying with this requirement could result in a large time gap in which many electronic cigarette brands would not be available to the public.

If any kind of equivalency regulation is enforced or proposed, electronic cigarette companies should retain experienced counsel to begin the regulatory compliance and equivalency process as soon as possible.

It is also likely that the FDA will propose advertising and marketing restrictions on electronic cigarette companies.  As of right now, electronic cigarette companies face little-to-no regulations governing how they market their product(s).  Some of the larger electronic cigarette companies are even starting to run major celebrity-endorsed television commercials reminiscent of the cigarette commercials that aired in the 1970s and 1980s, before these practices came under governmental regulation.

Electronic cigarette companies must become intimately familiar with the advertising and marketing laws regulating their industry or risk facing potential class action lawsuits and investigations by the Federal Trade Commission and state attorneys general.

It should be noted that the announcement of proposed regulations does not necessarily mean that such regulations will be immediately passed into law, as-is.  There will likely be a lengthy public discussion and comment period, which will delay the final draft of the bill from being presented to Congress for a vote.  The foregoing notwithstanding, it is a best practice to plan a course of action early and retain experienced counsel to help navigate the murky regulatory climate.