Regulating E-Cigarettes: Why Policies Diverge

Abstract

This paper, part of a festschrift in honor of Professor Malcolm Feeley, explores the landscape of e-cigarette policy globally by looking at three jurisdictions that have taken starkly different approaches to regulating e-cigarettes—the US, Japan, and China. Each of those countries has a robust tobacco industry, government agencies entrusted with protecting public health, an active and sophisticated scientific and medical community, and a regulatory structure for managing new pharmaceutical, tobacco, and consumer products. All three are signatories of the World Health Organization’s Framework Convention on Tobacco Control, all are signatories of the Agreement on Trade-Related Aspects of Intellectual Property Rights, and all are members of the World Trade Organization. Which legal, economic, social and political differences between the three countries explain their diverse approaches to regulating e-cigarettes? Why have they embraced such dramatically different postures toward e-cigarettes? In seeking to answer those questions, the paper builds on Feeley's legacy of comparative scholarship, policy analysis, and focus on law in action.

Keywords: Public health law & regulation, comparative law, tobacco, e-cigarettes, vaping, policy analysis, United States, Japan, China, social justice, health impact, lack of scientific consensus, economic & political interests, courts as a source of policy divergence, Malcolm Feeley