Pa. can levy tobacco tax on e-cigarettes, even if their nicotine doesn't come from tobacco, court says

Pennsylvania's tobacco tax must apply to e-cigarettes even if the nicotine in their fluids don't come from tobacco, a state appeals court has ruled.


Should e-cigarettes be subject to the state's 40 percent tobacco tax even though the liquids they use often contain nicotine that isn't derived from tobacco?

The answer to that is, "Yes," a Commonwealth Court panel ruled Friday.

However, the court also gave the vaping industry at least a temporary partial win, ruling the tobacco tax cannot be applied to the component parts of an e-cigarette when those parts are sold separately.

The full financial impact of the split decision, contained in an opinion by Judge Renee Cohn Jubelirer, isn't clear. But it can be tallied for East Coast Vapor LLC, the firm that brought the legal challenge against the Department of Revenue. By not taxing vaping components separately, the firm would have saved about $28,000 last year, according to court filings.

The decision by Jubelirer's court involved considerations of public health, the origin of nicotine and the mechanics of vaping.

First, the mechanics. E-cigarettes, or "electronic oral devices" as the law describes them, consist of a mouthpiece, a tank for the vaping fluid, a heating element and a battery. The heating element turns the liquid to vapor for ingestion, the reason for the term "vaping."

East Coast Vapor challenged the constitutionality of levying the tobacco tax on e-cigarettes on grounds that much nicotine in the fluid used in them is not derived from tobacco, but from other sources including eggplants, tomatoes and potatoes.

Jubelirer concluded "the General Assembly had legitimate state objectives for electing to tax those items," especially since ingesting nicotine of any source through an e-cigarette can cause an addiction leading to the use of regular cigarettes and ensuing health problems.

She noted that East Coast Vapor "has never alleged that the nicotine contained in e-liquid, albeit derived from a source other than tobacco, is any different than the nicotine contained in tobacco or any less addicting."

"It is, therefore, not 'unreasonable, unduly oppressive or patently beyond the necessities of the case' to tax a product that is similar to tobacco when it contains nicotine and is as addictive as a tobacco product," Jubelirer wrote.

The tobacco tax, after all, is designed to discourage smoking and other tobacco use and benefit public health by making the habit too costly, especially for younger potential users, she found.

Jubelirer gave East Cose Vapor a win on the component issue by rejecting the revenue department's argument that vendors could evade the tobacco tax simply by selling the e-cigarette parts separately and let the users assemble them.

The law enacting the tobacco tax only specifies that the levy will be imposed on the fully-assembled e-cig, she noted, so the component parts are exempt. If it desires, the Legislature can revise the measure to make the components as taxable, as federal law does, Jubelirer found.

"Of course, as with any tax, there will be some who seek to avoid or evade the tax," she wrote. The revenue department, "has the power to enforce the law and to lobby the Legislature should evasion of the (tobacco tax) by disassembly of the 'electronic oral device' prove to be widespread."

Both sides can appeal the Commonwealth Court's ruling to the state Supreme Court.