In my view, it is impossible to justify this aspect of the FDA's proposed deeming regulations because any restrictions on marketing to adult consumers should be based on the need to prevent companies from transmitting false, misleading, or deceptive information. Prohibiting companies from telling consumers the truth does not advance any legitimate government interest.

The Rest of the Story

What it means is that the ERS would rather that a smoker who cannot quit using other means continue smoking than switch to electronic cigarettes. The ERS clearly states that it opposes the use of electronic cigarettes, period. Thus, it implies that it opposes the use of electronic cigarettes by a smoker who is unable to quit via any other smoking cessation method. For such an individual, the ERS statement implies that it would actually prefer the smoker to continue smoking than to quit via the use of electronic cigarettes.

An established principle of contract law is that both parties must agree to the terms. There must be mutual assent. However, the electronic cigarette companies were not party to the Master Settlement Agreement. Thus, the terms of that settlement cannot be imposed upon them involuntarily, even if electronic cigarettes were considered by the Attorneys General as meeting the MSA's definition of cigarettes.

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