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Under the proposed legislation, it would still be a class B misdemeanor for anyone outside the jail to give inmates E-Cigarettes and require inmates to purchase specially designed plastic e-cigarettes only from state-sanctioned commissary, and no longer a sentence extending crime for an inmate to possess a controlled but legal substance.

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 addition to violating state law by enforcing a contract on a party not subject to that contract, Representatives Waxman, Harkin, and Welch are asking their Attorneys General to violate the Compact Clause of the Constitution by entering into a compact with other states without the consent of Congress. They are asking the states to conspire to an agreement by which they would force electronic cigarette companies to become parties to a contract to which they do not assent.

Banning smoking in public parks and beaches may have environmental benefits, but in terms of human health, there is no evidence that these policies are actually addressing any substantial public health problem. In contrast, the problem of secondhand smoke exposure in New Jersey's casinos is truly a life and death issue.

(See: Dutra LM, Glantz SA. Electronic cigarettes and conventional cigarette use: a cross-sectional study. Published online March 6, 2014. JAMA Pediatr. doi:10.1001/jamapediatrics.2013.5488.)