Similar data from the U.S. would be very helpful. But unlike prior reports, these ones should quantify not only experimentation, but also regular use, stratified by prior status as smokers versus nonsmokers.

For this reason, I believe there is a serious question as to the constitutionality of this provision of the deeming regulations. The government cannot interfere with commercial speech unless that interference is necessary to promote a legitimate government interest. The only way that the government could show that a ban on stating that electronic cigarettes are safer than tobacco cigarettes advances a legitimate government interest would be to provide evidence that electronic cigarettes are not safer than real cigarettes. Since such evidence does not exist, the government would have a difficult time making the case. Therefore, I believe that if the deeming regulations are promulgated in their current form, this aspect of the regulations will be successfully challenged by the electronic cigarette industry.

In other words, despite acknowledging that they cannot tell from their study whether e-cigarette use precedes smoking or whether smoking precedes e-cigarette use, they nonetheless draw the conclusion that e-cigarette use precedes smoking.

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