Commissioned by Jiemian, published in Jiemian Commentary, “Is e-cigarette smoke really smoke, yet another race between technology and regulation”
Is e-cigarette smoke really smoke? At first glance, this question seems like nothing more than sophistry along the lines of “a white horse is not a horse,” but on closer thought, it is in fact a serious question.
First, in terms of appearance, apart from the very early generation of e-cigarettes, which deliberately imitated the shape of cigarettes, today’s popular e-cigarettes are worlds apart from traditional cigarettes in outward form. Some look like USB flash drives, some like fountain pens, some like mice, some like hammers, some like flying saucers; in short, most of them look like a kind of novel electronic toy, with no connection whatsoever to traditional cigarettes.
In terms of contents, e-cigarettes use liquid cartridges containing propylene glycol, glycerin, flavorings, and nicotine, of which only nicotine is the same as in traditional cigarettes. But there is also a category of e-cigarettes that contains no nicotine at all and wins purely by virtue of its aroma.
In terms of usage, the common point is that both are inhaled into the lungs, but the specific method is completely different: traditional cigarettes work through combustion, while e-cigarettes work through atomization.
In short, the common ground between e-cigarettes and traditional cigarettes may be only “inhaling nicotine into the lungs.” Then can we say that cola, which shares with tea the common point of “drinking caffeine into the stomach,” is also tea? If we say “cola is not tea,” then why is “e-cigarette smoke” smoke?
Indeed, many people support the position that “e-cigarettes are not cigarettes,” not out of some philosophical concern over name and reality, but in order to make money. As e-cigarettes have just been emerging, manufacturers often deliberately exploit the ambiguity in definitions, enabling e-cigarette advertising and sales to bypass traditional tobacco bans, so that e-cigarettes can be sold in areas where smoking is prohibited, or marketed to minors and children who have traditionally been forbidden from smoking, while also seeking to evade additional government taxes on the tobacco industry. And when it comes to traditional smokers, e-cigarettes are also often broadly marketed as medicinal aids for quitting smoking.
China’s Tobacco Monopoly Law, enacted in 1991, obviously also failed to include e-cigarettes. Article 2 of the law defines “tobacco monopoly products” as follows: “The tobacco monopoly products referred to in this Law are cigarettes, cigars, shredded tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, cigarette filter rods, tobacco tow, and machinery specially used for tobacco.” Whether there are other tobacco products besides “cigarettes, cigars, shredded tobacco, redried tobacco leaves,” and how such products should be identified, is not addressed by the law.
So in actual promotion, merchants, out of self-interest, sometimes emphasize that e-cigarettes are cigarettes, and at other times emphasize their non-cigarette identity. This ambiguity of positioning is precisely one of the things that has drawn criticism upon e-cigarettes. People have found that although e-cigarettes seem less harmful than traditional cigarettes, they greatly expand the audience, drawing many young people and even children who otherwise would never have come into contact with tobacco into the ranks of smokers, and a considerable portion of them are even more likely to try cigarettes, marijuana, and other addictive consumer products. In addition, some people who might originally have sought more effective smoking cessation methods are instead more likely to fall into a new trap; for many, the result is that they use both old and new products and end up smoking even more.
Governments around the world have already begun to respond, successively introducing standards and regulations related to e-cigarettes, and it is expected that China will also soon issue e-cigarette standards. But even if new standards are introduced, they may not be able to solve the problem of e-cigarette classification once and for all, because the e-cigarette industry itself is still changing with each passing day and has not yet matured into a fixed form.
From the history of technological development, the introduction of new standards and new regulations is always more lagging than the replacement of new technologies. Especially when a new technology has just started to become popular, and developers are still producing all kinds of ingenious ideas and pursuing wildly varied development paths, it becomes even harder to establish a once-and-for-all standard. A standard may have just been formulated when the next generation of products has already iterated away the existing standard. In many cases, the formulation of standards benefits early movers in consolidating their market position, but it may also hinder the creativity of technological development.
In fact, it is common in this era for new technologies to break through old regulations and develop freely. A typical example is the rise of e-commerce, represented by Taobao. In its early stage of development, it precisely took advantage of the ambiguous status of “online stores are not stores,” allowing small sellers to evade the various tax and management systems aimed at traditional shops, and thus to grow rapidly. And the various management methods aimed at brick-and-mortar stores were indeed out of date and needed to be reformulated. But if new rules are drawn up too quickly and too strictly, they may well strangle the vigorous development of e-commerce.
Electronic communication, mobile payments, online literature, livestreaming on the internet, and so on—these emerging things. If, from the outset, the postal bureau were made responsible for email, the telephone bureau for QQ, the bank for Alipay, and the television station for online livestreaming, then perhaps these emerging things would never be able to fully unfold their possibilities. By exploiting the lag in regulation and “taking advantage of the regulators’ not paying attention,” new technology gains its golden time for development.
But norms must still keep pace with the times. On the one hand, many emerging things, in the course of their savage development, will bring about many new social problems; on the other hand, not every new technology is necessarily a good thing. Online stores and online chatting may perhaps be left alone to some extent, but whether online gambling, online lending, and the like should all be allowed to develop in a wild and unrestrained manner is a matter open to debate.
The rapidly changing technological age has posed new demands on our institutional culture, and we must maintain the proper tension between indiscriminately strangling things in the bud and completely letting them be. The formulation of standards and laws of course requires rigor and precision, but it also has to leave proper room for technological change.
When facing technological development, we need to transcend ready-made, either-or patterns of thinking. We cannot simply regard a term as a collection of certain fixed and unchanging things (for example, smoke = the collection of these four products: cigarettes, cigars, shredded tobacco, and redried tobacco leaves), but must instead view things from a historical perspective. From pipes and water pipes to cigars and cigarettes, the form of tobacco products and their cultural meaning have been changing all along; we cannot decide the boundary of “smoke” once and for all. But at the same time, we must also maintain the stability of standards and regulations, and adhere to the “consistency” of legislative principles. For example, whatever tobacco may be, what exactly is the purpose that prompts us to enact special laws to restrict tobacco marketing?
On this point, the Tobacco Monopoly Law also offers an explanation. Before giving the definition in Article 2, Article 1 of the law states the legislative principle in plain terms: “In order to implement tobacco monopoly administration, to organize in a planned way the production and operation of tobacco monopoly products, to improve the quality of tobacco products, to safeguard consumers’ interests, to ensure state fiscal revenue, this Law is enacted.”
However, the above statement clearly emphasizes the secondary while neglecting the primary, because purposes such as “improving the quality of a product, safeguarding consumers’ interests, and ensuring state fiscal revenue” apply to any commodity whatsoever. This opening declaration does not honestly or clearly explain the distinctiveness of “tobacco” — why, exactly, do we need to enact special restraints specifically for tobacco?
In fact, we all know that it is precisely tobacco’s harmfulness and addictiveness that make it an extremely special commodity; therefore, compared with ordinary commodities, we need to exercise extra caution in restricting it. Only by clarifying the principles of legislation can we adopt the proper attitude when facing new things. For instance, with e-cigarettes, the question of whether they should be put on the same footing as traditional cigarettes does not lie in their physical form or production method, but in their harmfulness and addictiveness. Many disputes surrounding e-cigarettes do indeed focus on these two issues.
The formulation of regulations requires rigor and precision, but if one is only meticulous to the utmost when defining ready-made objects such as cigarettes and shredded tobacco, yet speaks vaguely, in empty phrases and clichés, when clarifying legislative principles, then that is undoubtedly putting the cart before the horse.
Translated from the Chinese original with AI assistance. The original text is authoritative.
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