One of the few bits of positive news from the USA recently was a decision by Pennsylvania’s Commonwealth Court ruling that the state’s e-cig tax – which has already forced hundreds of businesses to close – violated the state constitution. The ruling followed a case brought by East Coast Vapor, who claimed that the tax violated due process by defining e-cigarettes as a tobacco product. The company pointed out that many vapour products either contain nicotine that isn’t derived from tobacco, or don’t contain nicotine at all.
Now the Pennsylvania Department of Revenue has managed to successfully appeal against the original ruling, arguing that whether nicotine is derived from tobacco or not, it has the same effects on the human body. While this is true, the DOR is using this as part of a “gateway” argument, suggesting that people who vape nicotine are likely to switch to smoking. While there’s no evidence to support this hypothesis, it’s still frequently trotted out by opponents of tobacco harm reduction.
The court accepted this argument, noting that a gateway effect has been a consistent justification for anti-harm reduction laws in the state. Judge Renee Jubelirer said that it wasn’t “unreasonable, unduly oppressive or patently beyond the necessities of the case” to tax e-cigarettes as a tobacco product.
However, Judge Jubelirer also ruled that while the tax could be applied to anything that met the definition of an e-cigarette under state law, it could not be applied to component parts. The DOR complained about this decision, saying it meant the tax could be avoided by simply selling the parts separately for final assembly by the user. In fact, this is how many products are already sold – neither a mod nor an atomiser meets the state’s definition. The court may have green-lighted a tax that lets the majority of independent vapour products slip through the net.
