Smokin’ war in Las Vegas: Are e-cigarettes tobacco product or not?

Is an e-cigarette that delivers nicotine via an aerosol a tobacco product?

7-Eleven insists it is and wants Becker Enterprises to boot a local e-cigarette operation out of the shopping center the two share based on a noncompete clause in the lease. To achieve that goal, 7-Eleven is suing Becker Enterprises, the landlord.

Matt Becker and his wife, April Becker, a lawyer who represents Becker Enterprises, take the position that Sky Vapors doesn’t sell tobacco products.

So does the owner of Sky Vapors, Lonnie Paulsen Jr.

If it’s a tobacco product, why is it not taxed as a tobacco product?

“Statutes define a cigarette as having a tobacco leaf somewhere inside it or wrapped around it,” April Becker said, revealing her legal defense.

It would be easier not to defend the lawsuit, but the Beckers are going to challenge it.

“The judge has to define if it’s tobacco,” said Matt Becker, an ex-smoker who has never used e-cigarettes but disputed that they are a tobacco product. “I would not go against any exclusivity agreement.”

SKY VAPORS

Sky Vapors opened in September in a shopping center in the Lakes on the southwest corner of Sahara Avenue and Durango Drive. The small store at 8643 W. Sahara Ave. sits to the right of a 7-Eleven. Unless you’re looking for it, it’s easily overlooked. Inside, there is a counter with devices and two tables to test the liquid flavors. In a way, it seems like a private perfumery.

But in March, 7-Eleven said that since the store opened in 1986, there has been a noncompete clause that the landlord would not permit any other tenant within the shopping center to sell “cigarettes and tobacco products, except vending machines.”

The Beckers don’t want to oust Sky Vapors because there have been a string of operations that have failed in that spot — nine to be exact. And suddenly e-cigarettes are hot sellers despite unresolved concerns about their negative aspects.

In fact, 7-Eleven sells a brand called NJOY for $8.64, with sales tax. But no tobacco tax was added on. Prepackaged with two e-cigarettes, the sales clerk said it would be equal to a pack of cigarettes.

The package warns that the product is not a smoking cessation product and has not been tested as such.

Paulsen’s products sell for $25 to $150. It’s a bit more upscale with its containers and flavorings.

He said e-cigarettes are for people who want to quit smoking.

That’s how Paulsen, 32, got into the business. A cigarette smoker since the fourth grade, he was trying to quit and did, although it took a year.

“It worked for me, and it’s definitely the wave of the future,” he said.

“I don’t sell nicotine. I give it away for free. He puffed a vapor plume 3 feet long using a container decorated with a rendition of Boris Karloff, part of his handcrafted horror series.

E-CIGARETTES: HOW THEY WORK

For those unfamiliar with electronic cigarettes: They originated in the 1960s, faded in popularity and were revived in 2004 by the Chinese. In the United States, their popularity soared about two years ago.

They are battery-powered devices that provide doses of nicotine and other additives to a user who inhales and exhales the aerosol.

Depending on the size of the device, the puff emerging can be dramatic, as Paulsen demonstrated.

The vapor that emerges from one’s mouth is similar to a fog machine used at a concert, according to Paulsen, who estimated there are about 30 e-cigarette stores in Las Vegas.

Nicotine is inserted into liquids and inhaled. The liquids are so flavorful that some people are stopping the nicotine entirely and just enjoying the vapors of flavors.

Sky Vapors’ flavor list includes Holy Grail, which tastes like a cigarette. Flavors range from sweets, fruits, drinks and fruit blends. There are so many choices that can be mixed, Paulsen has customers who can spend as long as two hours selecting their flavors.

The small store takes in about $8,000 a month in e-cigarette and container sales with about 15 daily customers, Paulsen said. He contends his business draws more business to the 7-Eleven next door.

“I don’t see myself as a threat to them,” he said.

He believes the lawsuit against Becker Enterprises is a test case for 7-Eleven. A spokeswoman for the company did not answer whether it is the first case involving an exclusivity agreement against an e-cigarette competitor.

“I’m trying to help people live longer,” Paulsen said.

Not everyone agrees.

FEDS HAVE HEALTH CONCERNS

The U.S. Centers for Disease Control and Prevention is concerned that e-cigarettes are a gateway product that will entice young users to transition to cigarettes and is tracking the increasing use among young people from grades 6 to 12. The names and flavors seem designed to attract younger users, which is one of the concerns of Congress. Among the sweet flavors offered are honey, maple, chocolate, vanilla, bubble gum and cotton candy.

The center said the overall effect of e-cigarettes on public health remains uncertain, but among the concerns are whether the nicotine used creates problems for adolescent brain development.

Recently, the center issued a report that said poison control centers are receiving more calls involving exposure to liquid nicotine. Half the calls involve children under 5. Some children have ingested or rubbed the products on their skin or in their eyes.

The U.S. Food and Drug Administration plans to set regulations for e-cigarettes, but it hasn’t done so yet.

Without any consistent federal regulation, and without definitive agreement about the product’s effect on health, states have taken various actions. The most popular action seems to be banning sales to minors. The Nevada Legislature hasn’t addressed the issue, according to a search of its website.

The case against Becker Enterprises was assigned to District Judge Michelle Leavitt, who is being asked to determine whether an e-cigarette is a tobacco product and a lease-breaker.

Meanwhile, recent news about the e-cigarettes involved one exploding and setting a bartender’s dress on fire in England last week.

And although less explosive, a congressional report last week called for regulation of the industry. The report is titled “Gateway to Addiction.”

Contact Jane Ann Morrison at jmorrison@reviewjournal.com or 702-383-0275.