Given the recent disturbing news and ongoing investigations about vaping-related illnesses, it may be time to update your well-being program messaging on tobacco use. And if you have a tobacco-use premium surcharge but don’t include vaping or other electronic nicotine delivery systems (ENDS) as tobacco use, it’s definitely time to reconsider.
From a regulatory perspective, it’s complicated and unclear. Per the FDA, vaping is a noncombustible tobacco product. However, the CDC is less direct than the FDA on the topic, in fact labeling vaping/ENDS as a “substitute for regular cigarettes and other smoked tobacco products.” A motivated employee may pick up on the lack of a formal CDC position on whether vaping/ENDS constitutes tobacco use.
To further complicate matters, ACA wellness regulations allow additional incentive amounts (up to 50% of the total cost of the applicable plan coverage tier) for health contingent “wellness programs designed to prevent or reduce tobacco use.” Normally, health contingent wellness programs are capped at 30%. If an employer’s total wellness incentives are below 30% (most employers are in this camp), there is really no issue. Only where an employer wants to go above 30%, based on a definition of tobacco use that includes vaping/ENDS, does the lack of clarity in the regulations become an issue. Reasonable minds can disagree:
- No, you can’t go above 30%. Vaping/ENDS products do not contain tobacco so they should not be included in a tobacco use surcharge that exceeds 30% of plan cost.
- Yes, you can go above 30%. The regulations were issued in June 2013 – when vaping/ENDS was much less prevalent – and do not address vaping/ENDS at all. In fact, tobacco use is not a defined term. Vaping/ENDS products can reasonably be included in a tobacco use surcharge that exceeds 30% of plan cost.
Perhaps the bottom line questions are these:
- Does vaping/ENDS “prevent or reduce tobacco use?”
- Or is vaping/ENDS simply another form of tobacco use?
The jury is still out.
From a medical perspective there is not much controversy that the active ingredient in tobacco is nicotine. Nicotine is the addictive substance as well as being carcinogenic. It also causes direct damage to tissues that are related to heart disease and other conditions. The idea of the relative safety of these products comes almost entirely from avoiding consumption of tar and other substances in tobacco. As we know from the recent stories, the agents that are used to transport the nicotine into the lungs from vaping/ENDS products are not benign, so safety appears to be a risk in both methods of taking in nicotine.
As far as whether vaping/ENDS can aid smoking cessation, there is inadequate data at this point to say that if a current smoker changes to vaping that they have a greater chance of quitting altogether. One recent article indicated that the relapse rate for people trying vaping is higher than other quit methods.
What about other guidance? Let’s look to the ACA for help. Recall that nongrandfathered plans must cover in-network preventive health services at 100%. The US Preventive Services Task Force (USPSTF) helps define preventive health services, and tobacco use interventions are among the recommendations receiving the highest “A” rating. The USPSTF’s Final Recommendation Statement has this conclusion: “the evidence on the use of ENDS for tobacco smoking cessation in adults, including pregnant women, is insufficient, and the balance of benefits and harms cannot be determined.” That’s not much help. The Statement was issued in 2015 so it may be updated at some point.
An employer interested in the health of their employees -- as well as in minimizing the risk of claims for nicotine-related health issues -- should address vaping/ENDS in their workplace policies (we know of few, if any, employers that permit vaping at the worksite other than in areas designated for tobacco use) and in their wellness programs, as long as the 30% cap is not an issue. Some might even consider going above 30%, given the lack of clarity in the 2013 regulations. Even the CDC is very clear that they do not recommend anyone starting vaping and that it is particularly dangerous for adolescents, pregnant women or those with underlying health conditions. Armed with the FDA’s formally stated, clearly negative stance on vaping/ENDS, employers can feel confident in both their policies and messaging that reinforces the risks of these products.