By the way, I agree with Wimmer's ultimate conclusion: that commonsense regulation of electronic cigarettes by the FDA is urgently needed. However, I don't need to lie or deceive the public in order to make that point.

This advice is all fine and dandy for smokers who feel confident that they can quit using FDA-approved drugs. However, what about smokers who don't have the self-efficacy to quit using such drugs? What about smokers who have tried and failed with these approaches and are quite sure that it would be a waste of time to try the same dismal methods again? And what about smokers who are particularly excited about the possibility of using electronic cigarettes in a quit attempt?

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.

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