If a company were to make such a claim, it would constitute a reduced exposure claim, which is prohibited under section 911. To make matters worse, such a claim can only be approved by the FDA if the company shows that if consumers hear that the product is free of tobacco, they will not be led to believe that the product is safer. In other words, to simply make the truthful and uncontroversial claim that your electronic cigarettes are free of tobacco, you would have to first demonstrate that consumers will not interpret the absence of tobacco as indicating that the product is any safer. But we know for a fact that consumers will interpret (and should interpret) the absence of tobacco as an indication that vaping is safer than smoking. Therefore, the deeming regulations place a de facto, permanent ban on electronic cigarette companies making the simple claim that their products do not contain tobacco.

The degree to which electronic cigarettes stimulate or depress overall interest in quitting is a separate and empirically answerable question. In fact, evidence from the UK indicates that the spread of electronic cigarettes has been associated with a in the desire to quit smoking at a population level.

The rest of the story is that what these members of Congress are asking the Attorneys General to do is to trample on the Constitution. They are asking the Attorneys General to violate the established laws of their state by not only ignoring the clear language of the MSA, but by illegally enforcing a contract on parties that did not consent to that contract in the first place.

1. The subjects did not consent to participate in the study.

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