"The findings demonstrated that manufacturers did not simply remove descriptors, to be in compliance with the law, but introduced new color-coded brand name descriptors which smokers were able to recognize and easily identify the formerly labeled "lights" brands. We did not examine the use of colors themselves, which may be protected by the First Amendment, but rather the use of color terms. The marketing materials examined make explicit the fact that the use of substituted color terms in brand names is similar to the dropped "descriptors, so that consumers will continue to recognize these brands as "lights"."

Many anti-smoking groups and advocates have been pushing for a ban on the use of flavorings in electronic cigarettes. Such a ban would have devastated the industry, as the flavors are a key aspect of what makes these products competitive with tobacco cigarettes. In addition, the flavors make e-cigarettes distinct from tobacco cigarettes and make it much less likely that people who switch to these products will return to regular cigarettes. In addition, youth who use flavored electronic cigarettes are most likely less inclined to initiate smoking because once they are accustomed to the flavors, cigarettes would seem extremely harsh.

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