If I had to characterize the two camps, I wouldn't characterize them as optimists vs. pessimists. I would characterize them as scientists who are actually talking to vapers and considering their experiences versus those who are stuck in ivory towers. I would characterize them as scientists who are pure idealists versus those who live in the real world. And finally, I would characterize them as scientists who are paying attention to the actual scientific evidence versus those who are ignoring the evidence and basing their opinions on ideology.

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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